United States v. Rhodes1

Motion in arrest of judgment.

Opinion

1 Reported by Benjamin Vaughan Abbott, Esq., and here reprinted by permission. 1 Am. Law Reg. (N. S.) 233, contains only a partial report.

*785SWAYNE, Circuit Justice.

This is a prosecution under the act of congress of the 9th of April, 1866 [14 Stat. 27], entitled ‘An act to protect all persons in the United States in their civil rights, and to furnish the means for their vindication.’ The defendants having been found guilty by a jury, the case is now before us upon a motion in arrest of judgment.

Three grounds are relied upon in support of the motion. It is insisted: I. That the indictment is fatally defective. II. That the case which it makes, or was intended to make, is not within the act of congress upon which it is founded. III. That the act itself is unconstitutional and void.

I. As to the indictment, if either count be sufficient, it will support the judgment of the court upon the verdict. Our attention will be confined to the second count. That count alleges that the defendants, being white persons,

‘on the 1st of May, 1866, at the county of Nelson, in the state and district of Kentucky, at the hour of eleven of the clock in the night of the same day, feloniously and burglariously did break and enter the dwelling house there situate of Nancy Talbot, a citizen of the United States of the African race, having been born in the United States, and not subject to any foreign power, who was then and there, and is now, denied the right to testify against the said defendants, in the courts of the state of Kentucky, and of the said county of Nelson, with intent the goods and chattels, moneys and property of *786the said Nancy Talbot, in the said dwelling house then and there being, feloniously and burglariously to steal, take, and carry away, contrary to the statute in such case made and provided, and against the peace and dignity of the United States.’

The objection urged against this count is, that it does not aver that ‘white citizens' enjoy the right which it is alleged is denied to Nancy Talbot. This fact is vital in the case. Without it our jurisdiction cannot be maintained. It is averred that she is a citizen of the United States, of the African race, and that she is denied the right to testify against the defendants, they being white persons. Section 669 of the Code of Civil Practice of Kentucky gives this right to white persons under the same circumstances. This is a public statute, and we are bound to take judicial cognizance of it. It is never necessary to set forth matters of law in a criminal pleading. The indictment is, in legal effect, as if it averred the existence and provisions of the statute. The enjoyment of the right in question by white citizens is a conclusion of law from the facts stated. Averment and proof could not bring it into the case more effectually for any purpose than it is there already. 1 Chit. Cr. Law, 188; 2 Bos. & P. 127; 2 Leach, 942; 1 Bish. Cr. Proc. §§ 52, 53. This right is one of those secured to Nancy Talbot by the first section of this act. The objection to this count cannot be sustained.

II. Is the offense charged, within the statute? The first section enacts:—

‘That all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery, '. . . ‘shall have the same right in every state and territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, sell and convey real and personal property; and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.’

The second section provides:—

‘That any person, who under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any state or territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in the condition of slavery,’ . . . ‘or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor,’ &c.

The third section declares:—

‘That the district courts of the United States within their respective districts, shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the state where they may be, any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, shall be commenced in any state court against such person, for any cause whatsoever,’ . . . ‘such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the act relating to habeas corpus, and regulating judicial proceedings in certain cases, approved March 3, 1863, and all acts amendatory thereof.’

It will be observed that jurisdiction is given to this court ‘of all causes, civil and criminal,’ affecting persons who are denied or cannot enforce in the local state courts ‘any of the rights secured by the first section of this act.’ The denial of any one is as effectual as the denial of any other or of all. But it is said the cause set forth in the indictment is not one affecting Nancy Talbot, in the sense of the law, and that therefore this court has no jurisdiction. U. S. v. Ortega, 11 Wheat. [24 U. S.] 467, is relied upon as authority for this proposition. That case is as follows: The constitution provides (article 3, § 2) that—‘In all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party, the supreme court shall have original jurisdiction.’

Ortega was indicted in the circuit court for ‘infracting the law of nations by offering violence to the person’ of Salmon, the charge d'affaires of Spain in the United States. The judges of the circuit court were opposed in opinion upon two questions, which were thereupon certified to the supreme court. They were: (1) Whether the case was one affecting a public minister within the meaning of the constitution; (2) and whether in such cases the jurisdiction of the supreme court is exclusive.

The supreme court decided only the first question. It was held that the case did not affect the charge d'affaires. This rendered it unnecessary to decide the other question, and it is still unsettled. It will be observed that the language of the statute is different. It is ‘causes, civil and criminal,’ and not ‘cases.’

Burrill, in his Law Dictionary, thus defines ‘cause’: ‘The origin or foundation of a thing, as of a suit or action; a ground of action. 1 Const. 470.’ The phrase ‘causes, civil and criminal,’ must be understood in the sense of causes of civil action and causes of criminal prosecution. These do unquestionably affect the plaintiff in the one case, *787and the party against whose person or property the crime is committed in the other.

The soundness and authority of the judgment in the case of Ortega are not questioned; but it is by no means true, as a universal proposition, that none are affected in the legal sense of the term, by a case, but those who are parties to the record. The solution of the question must always depend upon the circumstances.

In Osborn v. Bank of the United States, 9 Wheat. [22 U. S.] 584, the court said: ‘If a suit be brought against a foreign minister, the supreme court has original jurisdiction, and this is shown in the record; but suppose a suit be brought which affects the interests of a foreign minister, or by which his servant, or his secretary, becomes a party to the suit, but the actual defendant pleads to the jurisdiction and asserts his privilege. If the suit affects a foreign minister it must be dismissed; not because he is a party to it, but becuase it affects him.’

It may be asked, what is—if this is not—the proper construction of the statute? It has been answered that none are affected in criminal cases but the sovereign prosecuting and the defendants; and that hence colored persons only can be prosecuted under its provisions. When the act was passed there was no state where ample provision did not exist for the trial and punishment of persons of color for all offenses; and no locality where there was any difficulty in enforcing the law against them. There was no complaint upon the subject. The aid of congress was not invoked in that direction. It is not denied that the first and second sections were designed solely for their benefit. The third section, giving the jurisdiction to which this question relates, provides expressly that if sued or prosecuted in a state court under the circumstances mentioned, they may at once have the cause certified into a proper federal court.

The fourth section requires district-attorneys, marshals and their deputies, commissioners, agents of the freedmen's bureau, and other officers specially empowered by the president, to institute proceedings at the expense of the United States, against all persons violating the provisions of the act; and ‘with a view to affording reasonable protection to all persons in their constitutional rights of equality before the law, without distinction of race or color, or previous condition of slavery or involuntary servitude,’ it is made the duty of circuit courts of the United States to increase the number of their commissioners.

The fifth section imposes a heavy fine on marshals who shall refuse to receive or neglect to execute any process issued under the act; and it authorizes commissioners to appoint persons to serve such process issued by them.

The sixth section renders liable to fine and imprisonment any person who shall obstruct an officer or other person in the execution of such process; or who shall aid a person arrested to escape; or conceal a person for whose arrest a warrant has been issued.

Section eight authorizes the president to direct the judge, marshal, and district-attorney to attend at such place and for such time as he may designate, ‘for the purpose of the more speedy arrest and trial of persons charged with violations of this act.’

The ninth section authorizes the president to employ such part of the land and naval forces of the United States, and of the militia, as shall be necessary to ‘prevent the violation and enforce the due execution of this act.’

It is incredible that all this machinery, including the agency of the freedmen's bureau, would have been provided, if the intention were to limit the criminal jurisdiction conferred by the third section to colored persons, and exclude all white persons from its operation.

The title of the act is in harmony with this view of the subject. The construction contended for would obviously defeat the main object which congress had in view in passing the act, and produce results the opposite of those intended.

The difficulty was that where a white man was sued by a colored man, or was prosecuted for a crime against a colored man, colored witnesses were excluded. This in many cases involved a denial of justice. Crimes of the deepest dye were committed by white men with impunity. Courts and juries were frequently hostile to the colored man, and administered justice, both civil and criminal, in a corresponding spirit. Congress met these evils by giving to the colored man everywhere the same right to testify ‘as is enjoyed by white citizens,’ abolishing the distinction between white and colored witnesses, and by giving to the courts of the United States jurisdiction of all causes, civil and criminal, which concern him, wherever the right to testify as if he were white is denied to him or cannot be enforced in the local tribunals of the state.

The context and the rules of interpretation to be applied permit of no other construction. Such was clearly the intention of congress, and that intention constitutes the law.

This, with the provision which authorizes colored defendants in the state courts to have their causes certified into the federal courts, and the other provisions referred to, renders the protection which congress has given as effectual as it can well be made by legislation. It is one system, all the parts looking to the same end.

Where crime is committed with impunity by any class of persons, society, so far as they are concerned, is reduced to that condition of barbarism which compels those unprotected by other sanctions to rely upon *788physical force for the vindication of their natural rights. There is no other remedy, and no other security.

It is said there can be no such thing as a right to testify, and that if congress conferred it by this act, a cloud of colored witnesses may appear in every case and claim to exercise it. There is no force in this argument. The statute is to be construed reasonably. Like the right to sue and to contract, it is to be exercised only on proper occasions and within proper limits. Every right given is to be the same ‘as is enjoyed by white citizens.’

It is urged that this is a penal statute, and to be construed strictly. We regard it as remedial in its character, and to be construed liberally, to carry out the wise and beneficent purposes of congress in enacting it. Bac. Abr. tit. ‘Statute,’ 1.

But if the act were a penal statute, the canons of interpretation to be applied would not affect the conclusion at which we have arrived. U. S. v. Wiltberger, 5 Wheat. [18 U. S.] 96; Com. v. Loring, 8 Pick. 374; U. S. v. Morris, 14 Pet. [39 U. S.] 475; U. S. v. Winn [Case No. 16,740]; 1 Bish. Cr. Law, 236. This objection to the indictment cannot avail the defendants.

III. Is the act warranted by the constitution?

The first eleven amendments of the constitution were intended to limit the powers of the government which it created, and to protect the people of the states. Though earnestly sustained by the friends of the constitution, they originated in the hostile feelings with which it was regarded by a large portion of the people, and were shaped by the jealous policy which those feelings inspired. The enemies of the constitution saw many perils of evil in the center, but none elsewhere. They feared tyranny in the head, not anarchy in the members, and they took their measures accordingly. The friends of the constitution desired to obviate all just grounds of apprehension, and to give repose to the public mind. It was important to unite, as far as possible, the entire people in support of the new system which had been adopted. They felt the necessity of doing all in their power to remove every obstacle in the way of its success. The most momentous consequences for good or evil to the country were to follow the results of the experiment. Hence the spirit of concession which animated the convention, and hence the adoption of these amendments after the work of the convention was done and had been approved by the people.

The twelfth amendment grew out of the contest between Jefferson and Burr for the presidency.

The thirteenth amendment is the last one made. It trenches directly upon the power of the states and of the people of the states. It is the first and only instance of a change of this character in the organic law. It destroyed the most important relation between capital and labor in all the states where slavery existed. It affected deeply the fortunes of a large portion of their people. It struck out of existence millions of property. The measure was the consequence of a strife of opinions, and a conflict of interests, real or imaginary, as old as the constitution itself. These elements of discord grew in intensity. Their violence was increased by the throes and convulsions of a civil war. The impetuous vortex finally swallowed up the evil, and with it forever the power to restore it. Those who insisted upon the adoption of this amendment were animated by no spirit of vengeance. They sought security against the recurrence of a sectional conflict. They felt that much was due to the African race for the part it had borne during the war. They were also impelled by a sense of right and by a strong sense of justice to an unoffending and long-suffering people. These considerations must not be lost sight of when we come to examine the amendment in order to ascertain its proper construction.

The act of congress confers citizenship. Who are citizens, and what are their rights?

The constitution uses the words ‘citizen’ and ‘natural born citizens;’ but neither that instrument nor any act of congress has attempted to define their meaning. British jurisprudence, whence so much of our own is drawn, throws little light upon the subject. In Johnson's Dictionary, ‘citizen’ is thus defined: ‘(1) A freeman of a city; not a foreigner; not a slave; (2) a townsman, a man of trade; not a gentleman; (3) an inhabitant; a dweller in any place.’

The definitions given by other English lexicographers are substantially the same. In Jacob's Law Dictionary (Ed. 1783), the only definition given is as follows: ‘Citizens (cives) of London are either freemen or such as reside and keep a family in the city, etc.; and some are citizens and freemen, and some are not, who have not so great privileges as others. The citizens of London may prescribe against a statute, because their liberties are reinforced by statute.’ 1 Rolle, 105.

Blackstone and Tomlin contain nothing upon the subject. ‘The word ‘civis,’ taken in the strictest sense, extends only to him that is entitled to the privileges of a city of which he is a member, and in that sense there is a distinction between a citizen and an inhabitant within the same city, for every inhabitant there is not a citizen.' Scot v. Schwartz, Comyn, 677. ‘A citizen is a freeman who has kept a family in a city.’ Roy v. Hanger, 1 Rolle, 138, 149. ‘The term ‘citizen,’ as understood in our law, is precisely analogous to the term subject, in the common law; and the change of phrases has entirely resulted from the change of government. The sovereignty has been changed from one man to the collective body of the people, and he who before was a subject of *789the king is now a citizen of the state.' State v. Manuel, 4 Dev. & B. 26.

In Shanks v. Dupont, 3 Pet. [28 U. S.] 247, the supreme court of the United States said: ‘During the war each party claimed the allegiance of the natives of the colonies as due exclusively to itself. The Americans insisted upon the allegiance of all born within the states, respectively; and Great Britain asserted an equally exclusive claim. The treaty of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from their allegiance to the British crown, and those who then adhered to the British crown, were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states on each side, and the inhabitants thereof; in the language of the seventh article, it was a ‘firm and perpetual peace between his Britannic majesty and the said states, and between the subjects of one and the citizens of the other.’ Who then were subjects or citizens was to be decided by the state of facts. If they were originally subjects of Great Britain and then adhered to her and were claimed by her as subjects, the treaty deemed them such; if they were originally British subjects, but then adhering to the states, the treaty deemed them citizens.'

All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin's Case, 7 Coke, 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583.

The common law has made no distinction on account of race or color. None is now made in England, nor in any other Christian country of Europe. The fourth of the Articles of Confederation declared that the ‘free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the United States,’ &c. On the 25th of June, 1778, when these articles were under consideration by the congress, South Carolina moved to amend this fourth article by inserting after the word ‘free’ and before the word ‘inhabitants,’ the word ‘white.’ Two states voted for the amendment and eight against it. The vote of one was divided. Scott v. Sanford, 19 How. [60 U. S.] 575. When the constitution was adopted, free men of color were clothed with the franchise of voting in at least five states, and were a part of the people whose sanction breathed into it the breath of life. Scott v. Sanford, Id. 573; State v. Manuel, 2 Dev. & B. 24, 25.

“Citizens' under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress.' 1 Kent, Comm. 292, note. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. If has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

It is further said in the note in 1 Kent, Comm., before referred to: ‘If a slave born in the United States be manumitted or otherwise lawfully discharged from bondage, or if a black man born in the United States becomes free, he becomes thenceforward a citizen, but under such disabilities as the laws of the several states may deem it expedient to prescribe to persons of color.’

In the case of State v. Manuel, supra, it was remarked: ‘It has been said that by the constitution of the United States, the power of naturalization has been conferred exclusively upon congress, and therefore it cannot be competent for any state by its municipal regulations to make a citizen. But what is naturalization? It is the removal of the disabilities of alienage. Emancipation is the removal of the incapacity of slavery. The latter depends wholly upon the internal regulations of the state. The former belongs to the government of the United States. It would be dangerous to confound them.’ Id. p. 25.

This was a decision of the supreme court of North Carolina, made in the year 1836. The opinion was delivered by Judge Gaston. He was one of the most able and learned judges this country has produced. The same court, in 1848, Chief Justice Ruffin delivering the opinion, referred to the case of State v. Manuel, and said: ‘That case underwent a very laborious investigation by both the bench and the bar. The case was brought here by appeal, and was felt to be one of very great importance in principle. It was considered with an anxiety and care worthy of the principle involved, and which give it a controlling influence upon all questions of similar nature.’ State v. Newsom, 5 Ired. 253.

We cannot deny the assent of our judgment to the soundness of the proposition that the emancipation of a native born slave by removing the disability of slavery made him a citizen. If these views be correct, the provision in the act of congress conferring citizenship was unnecessary, and is inoperative. Granting this to be so, it was well, if congress had the power, to insert it, in order to prevent doubts and differences of opinion which might otherwise have existed upon the subject. We are aware that a majority of the *790court, in the case of Scott v. Sanford, arrived at conclusions different from those we have expressed. But in our judgment these points were not before them. They decided that the whole case, including the agreed facts, was open to their examination, and that Scott was a slave. This central and controlling fact excluded all other questions, and what was said upon them by those of the majority, with whatever learning and ability the argument was conducted, is no more binding upon this court as authority than the views of the minority upon the same subjects.Carroll v. Carroll, 16 How. [57 U. S.] 287.

The fact that one is a subject or citizen determines nothing as to his rights as such. They vary in different localities and according to circumstances. Citizenship has no necessary connection with the franchise of voting, eligibility to office, or indeed with any other rights, civil or political. Women, minors, and persons non compos are citizens, and not the less so on account of their disabilities. In England, not to advert to the various local regulations, the new reform bill gives the right of voting for members of parliament to about eight hundred thousand persons from whom it was before withheld. There, the subject is wholly within the control of parliament. Here, until the thirteenth amendment was adopted, the power belonged entirely to the states, and they exercised it without question from any quarter, as absolutely as if they were not members of the Union.

The first ten amendments to the constitution, which are in the nature of a bill of rights, apply only to the national government. They were not intended to restrict the power of the states. Barrows v. Mayor, etc., 7 Pet. [32 U. S.] 247; Withers v. Buckley, 20 How. [61 U. S.] 84; Murphy v. People, 2 Cow. 818.

Our attention has been called to several treaties by which Indians were made citizens; to those by which Louisiana, Florida, and California were acquired, and to the act passed in relation to Texas. All this was done under the war and treaty making powers of the constitution, and those which authorize the national government to regulate the territory and other property of the United States, and to admit new states into the Union. American Ins. Co. v. Canter, 1 Pet. [26 U. S.] 511; Cross v. Harrison, 16 How. [57 U. S.] 164; 2 Story, Const. 158.

These powers are not involved in the question before us, and it is not necessary particularly to consider them. A few remarks, however, in this connection will not be out of place. A treaty is declared by the constitution to be the ‘law of the land.’ What is unwarranted or forbidden by the constitution can no more be done in one way than in another. The authority of the national government is limited, though supreme in the sphere of its operation. As compared with the state governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The states possess all which they have not surrendered; the government of the Union only such as the constitution has given to it, expressly or incidentally, and by reasonable intendment. Whenever an act of that government is challenged a grant of power must be shown, or the act is void.

‘The power to make colored persons citizens has been actually exercised in repeated and important instances. See the treaty with the Choctaws of September 27, 1830, art. 14; with the Cherokees of May 20, 1836, art. 12; and the treaty of Guadeloupe Hidalgo, of February 2, 1848, art. 8.’ Scott v. Sanford, 19 Now. [60 U. S.] 486, opinion of Curtis, J.

See also, the treaty with France of April 30, 1803, by which Louisiana was acquired (article 3); and the treaty with Spain of the 23rd of February, 1819, by which Florida was acquired (article 3). The article referred to in the treaty with France and in the treaty with Spain is in the same language. In both the phrase ‘inhabitants' is used. No discrimination is made against those, in whole or in part, of the African race. So in the treaty of Guadeloupe Hidalgo (articles 8 and 9), no reference is made to color.

Our attention has been called to three provisions of the constitution, besides the thirteenth amendment, each of which will be briefly adverted to.

1. Congress has power ‘to establish an uniform rule of naturalization.’ Article 1, § 8. After considerable fluctuations of judicial opinion, it was finally settled by the supreme court that this power is vested exclusively in congress. Collet v. Collet, 2 Dall. [2 U. S.] 294; U. S. v. Velati, Id. 370; Golden v. Prince [Case No. 5,509]; Chirac v. Chirac, 2 Wheat. [15 U. S.] 259; Houston v. Moore, Id. 49; Federalist, No. 32.

An alien naturalized is ‘to all intents and purposes a natural born subject.’ Co. Litt. 129. ‘Naturalization takes effect from birth; denization from the date of the patent.’ Vin. Abr. tit. ‘Alien,’ D. Until the passage of a late act of parliament, naturalization in England was effected by a special statute in each case. The statutes were usually alike. The form appears in Godfrey v. Dickson, Cro. Jac. 539, c. 7. Under the late act a resident alien may accomplish the object by a petition to the secretary of state for the home department.

The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen is not naturalization, and cannot be brought within the exercise of that power. There is a universal agreement of opinion upon this subject. Scott v. Sanford, 19 How. [60 U. S.] 578; 2 Story. Const. 44.

In the exercise of this power congress has confined the law to white persons. No one *791doubts their authority to extend it to all aliens, without regard to race or color. But they were not bound to do so. As in other cases, it was for them to determine the extent and the manner in which the power given should be exercised. They could not exceed it, but they were not bound to exhaust it. It was well remarked by one of the dissenting judges, in Scott v. Sanford, 19 How. [60 U. S.] 586, in regard to the African race:

‘The constitution has not excluded them, and since that has conferred on congress the power to naturalize colored aliens, it certainly shows color is not a necessary qualification for citizenship under the constitution of the United States.’

It may be added that before the adoption of the constitution, the states possessed the power of making both those of foreign and domestic birth citizens, according to their discretion. This power, as to the former, they surrendered. They did not as to the latter, and they still possess it.

‘The powers not delegated to the United States by this constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.’ Const. Amend. What the several states under the original constitution only could have done, the nation has done by the thirteenth amendment. An occasion for the exercise of this power by the states may not, perhaps cannot, hereafter arise.

2. ‘The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.’ Const. art. 14, § 2. This provision of the constitution applies only to citizens going from one state to another. ‘It is obvious that if the citizens of each state were to be deemed aliens to each other, they could not take or hold real estate, or other privileges, except as other aliens.’ ‘The intention of this clause was to confer on them, as one may say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same state would be entitled to under the same circumstances.' 2 Story, Const. § 187.

Chancellor Kent says: ‘If citizens remove from one state to another, they are entitled to the privileges that persons of the same description are entitled to in the states to which the removal is made, and to none other.’ 2 Kent, Comm. 36. This provision does not bear particularly upon the question before us, and need not be further considered.

3. ‘The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature or of the executive (when the legislature cannot be convened), against domestic violence.’ Article 4, § 4.

Mr. Justice Story, adopting the language of the Federalist, says: ‘That but for this power a successful faction might erect a tyranny on the ruins of order and law, while no succor could be constitutionally afforded by the Union to the friends and supporters of the government.’ . . . ‘But a right implies a remedy, and where else could the remedy be deposited than where it is deposited by the constitution?’ 2 Story, Const. 559, 560. This topic is foreign to the subject before us. We shall not pursue it further.

Congress, in passing the act under consideration, did not proceed upon this ground. It is not the theory or purpose of that act to apply the appropriate remedy for such a state of things. The constitutionality of the act cannot be sustained under this section.

This brings us to the examination of the thirteenth amendment. It is as follows:

‘Article 13, § 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

‘Sec. 2. Congress shall have power to enforce this article by appropriate legislation.’

Before the adoption of this amendment, the constitution, at the close of the enumeration of the powers of congress, authorized that body ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or any department or officer thereof.’

In McCullough v. Maryland, 4 Wheat. [17 U. S.] 421–423, Chief Justice Marshall used the phrase ‘appropriate’ as the equivalent and exponent of ‘necessary and proper’ in the preceding paragraph. He said: ‘Let the end be legitimate, let it be within the scope of the constitution, and all the means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.’ . . .. ‘To use one’ (a bank) ‘must be within the discretion of congress, if it be an appropriate mode of executing the powers of government.’ . . .. ‘But were its necessity less apparent’ (the Bank of the United States), ‘none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been justly observed, is to be discussed in another place.’

Pursuing the subject, he added: ‘When the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.’

Judge Story says: ‘In the practical application of government, then, the public functionaries must be left at liberty to exercise the powers with which the people, by the *792constitution and laws, have entrusted them. They must have a wide discretion as to the choice of means; and the only limitation upon the discretion would seem to be that the means are appropriate to the end; and this must admit of considerable latitude, for the relation between the action and the end, as has been justly remarked, is not always so direct and palpable as to strike the eye of every observer. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, and which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect.’ 1 Story, Const. § 432.

These passages show the spirit in which the amendment is to be interpreted, and develop fully the principles to be applied. Before proceeding further, it would be well to pause and direct our attention to what has been deemed appropriate in the execution of some of the other powers confided to congress in like general terms.

(1) ‘The power to lay and collect taxes, duties, and imposts.’ This includes authority to build custom houses; to employ revenue cutters; to appoint the necessary collectors and other officers; to take bonds for the performance of their duties; to establish the needful bureaus; to prescribe when, how, and in what the taxes and duties shall be paid; to rent or build warehouses for temporary storing purposes; to define all crimes relating to the subject in its various ramifications, with their punishment; and to provide for their prosecution.

(2) ‘To regulate commerce with foreign nations, among the several states, and with the Indian tribes.’ This carries with it the power to build and maintain lighthouses, piers, and breakwaters; to employ revenue cutters; to cause surveys to be made of coasts, rivers, and harbors; to appoint all necessary officers, at home and abroad; to prescribe their duties, fix their terms of office and compensation; and to define and punish all crimes relating to commerce within the sphere of the constitution. U. S. v. Coombs, 12 Pet. [37 U. S.] 72; U. S. v. Holliday, 3 Wall. [70 U. S.] 407.

(3) ‘To establish post-offices and post-roads.’ This gives authority to appoint a postmaster-general, and local postmasters throughout the country; to define their duties and compensation; to cause the mails to be carried by contract, or by the servants of the department, to all parts of the states and territories of the Union, and to foreign countries, and to punish crimes relating to the service, including obstructions to those engaged in transporting the mail while in the performance of their duty. The mail penal code comprises more than fifty offenses. All of them rest for their necessary constitutional sanction upon this power, thus briefly expressed.

(4) ‘To raise and support armies.’ This includes the power to enlist such number of men for such periods and at such rates of compensation as may be deemed proper; to provide all the necessary officers, equipments, and supplies, and to establish a military academy, where are taught military and such other sciences and branches of knowledge as may be deemed expedient, in order to prepare voung men for the military service.

(5) ‘To provide and maintain a navy.’ This authorizes the government to buy or build any number of steam or other ships of war, to man, arm, and otherwise prepare them for war, and to dispatch them to any accessible part of the globe. Under this power the naval academy has been established. U. S. v. Beavan, 3 Wheat. [16 U. S.] 390.

These are but a small part of the powers which are incidental and appropriate to the main powers expressly granted. It is Utopian to believe that without such constructive powers, the powers expressed can be so executed as to meet the intentions of the framers of the constitution, and to accomplish the objects for which governments are instituted. The constitution, provides expressly for the exercise of such powers to the full extent that may be ‘necessary and proper.’ No other limitation is imposed. Without this provision, the same result would have followed. The means of execution are inherently and inseparably a part of the power to be executed.

The constitution declares that ‘the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath to support this constitution.’ No other oath is required, ‘yet he would be charged with insanity who would contend that the legislature might not superadd to the oath directed by the constitution such other oath of office as its wisdom might suggest.’ McCulloch v. Maryland, 4 Wheat. [17 U. S.] 416.

The Bank of the United States, with all its faculties, was sustained because it was ‘convenient’ and ‘appropriate’ for the government in the management of its fiscal affairs. McCulloch v. Maryland, 4 Wheat. [17 U. S.] 316. Perhaps no measures of the national government have involved more doubt of their constitutionality than the acquisition of Louisiana and the embargo. Both were carried through congress by those who had been most strenuous for a strict construction of the constitution. Mr. Jefferson thought the former ultra vires, and advised an amendment of the constitution, but expressed a willingness to acquiesce if his friends should entertain a different opinion. 2 Story, Const. 160.

The Second Bank of the United States was a measure of the same class of thinkers. The acquisition of Florida involved the same question of constitutional power as the acquisition *793of Louisiana. It was universally acquiesced in; and the constitutional question was not raised.

It is an axiom in our jurisprudence, that an act of congress is not to be pronounced unconstitutional unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favor of the validity of the law. ‘The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.’ Fletcher v. Peck, 6 Cranch [10 U. S.] 128. ‘The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstrated.’ Cooper v. Telfair, 4 Dall. [4 U. S.] 18. ‘A remedial power in the constitution is to be construed liberally.’ Chisholm v. Georgia, 2 Dall. [2 U. S.] 476.

‘Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.’ Prigg v. Com., 16 Pet. [41 U. S.] 60.

Since the organization of the supreme court, but three acts of congress have been pronounced by that body void for unconstitutionality. Marbury v. Madison, 1 Cranch [5 U. S.] 137; Scott v. Sanford, 19 How. [60 U. S.] 393; Ex parte Garland, 4 Wall. [71 U. S.] 334.

The present effect of the amendment was to abolish slavery wherever it existed within the jurisdiction of the United States. In the future it throws its protection over every one, of every race, color, and condition within that jurisdiction, and guards them against the recurrence of the evil. The constitution, thus amended, consecrates the entire territory of the republic to freedom, as well as to free institutions. The amendment will continue to perform its function throughout the expanding domain of the nation, without limit ot time or space. Present possessions and future acquisitions will be alike within the sphere of its operation.

Without any other provision than the first section of the amendment, congress would have had authority to give full effect to the abolition of slavery thereby decreed. It would have been competent to put in requisition the executive and judicial, as well as the legislative power, with all the energy needful for that purpose. The second section of the amendment was added out of abundant caution. It authorizes congress to select, from time to time, the means that might be deemed appropriate to the end. It employs a phrase which had been enlightened by well-considered judicial application. Any exercise of legislative power within its limits involves a legislative, and not a judicial question. It is only when the authority given has been clearly exceeded, that the judicial power can be invoked. Its office, then, is to repress and annul the excess; beyond that it is powerless.

We will now proceed to consider the state of things which existed before and at the time the amendment was adopted, the mischiefs complained of or apprehended, and the remedy intended to be provided for existing and anticipated evils.

When the late Civil War broke out, slavery of the African race subsisted in fifteen states of the Union. The legal code relating to persons in that condition was everywhere harsh and severe. An eminent writer said:

‘They cannot take property by descent or purchase; and all they find and all they own belongs to their master. They cannot make contracts, and they are deprived of civil rights. They are assets for the payment of debts, and cannot be emancipated by will or otherwise to the prejudice of creditors.’ 2 Kent, Comm. 281, 282.

In a note, it is added:

‘In Georgia, by an act of 1829, no person is permitted to teach a slave, a negro, or a free person of color to read or write. So in Virginia, by a statute of 1830; meetings of free negroes to learn reading or writing are unlawful, and subject them to corporal punishment; and it is unlawful for white persons to assemble with free negroes or slaves to teach them to read or write. The prohibitory act of the legislature of Alabama, passed at the session of 1831–2, relative to the instruction to be given to the slaves or free colored population, or exhortation, or preaching to them, or any mischievous influence attempted to be exerted over them, is sufficiently penal. Laws of similar import are presumed to exist in the other slaveholding states, but in Louisiana the law on the subject is armed with ten-fold severity. It not only forbids any person teaching slaves to read or write, but it declares that any person using language in any public discourse from the bar, bench, stage, or pulpit, or any other place, or in any private conversation, or making use of any sign or actions having a tendency to produce discontent among the free colored population or insubordination among the slaves, or who shall be knowingly instrumental in bringing into the state any paper, book, or pamphlet having a like tendency, shall, on conviction, be punishable with imprisonment or death, at the discretion of the court.’

Slaves were imperfectly, if at all, protected from the grossest outrages by the whites. Justice was not for them. The charities and rights of the domestic relations had no legal existence among them. The shadow of the evil fell upon the free blacks. They had but few civil and no political rights in the slave states. Many of the badges of the bondman's degradation were fastened upon them. Their condition, like his, though not so bad, was helpless and hopeless. This is borne out by the passages we have given from Kent's *794Commentaries. Further research would darken the picture. The states had always claimed and exercised the exclusive right to fix the status of all persons living within their jurisdiction.

On January 1, 1863, President Lincoln issued his proclamation of emancipation. Missouri and Maryland abolished slavery by their own voluntary action. Throughout the war the African race had evinced entire sympathy with the Union cause. At the close of the Rebellion two hundred thousand had become soldiers in the Union armies. The race had strong claims upon the justice and generosity of the nation. Weighty considerations of policy, humanity, and right were superadded. Slavery, in fact, still subsisted in thirteen states. Its simple abolition, leaving these laws and this exclusive power of the states over the emancipated in force, would have been a phantom of delusion. The hostility of the dominant class would have been animated with new ardor. Legislative oppression would have been increased in severity. Under the guise of police and other regulations slavery would have been in effect restored, perhaps in a worse form, and the gift of freedom would have been a curse instead of a blessing to those intended to be benefited. They would have had no longer the protection which the instinct of property leads its possessor to give in whatever form the property may exist. It was to guard against such evils that the second section of the amendment was framed. It was intended to give expressly to congress the requisite authority, and to leave no room for doubt or cavil upon the subject. The results have shown the wisdom of this forecast. Almost simultaneously with the adoption of the amendment this course of legislative oppression was begun. Hence, doubtless, the passage of the act under consideration. In the presence of these facts, who will say it is not an ‘appropriate’ means of carrying out the object of the first section of the amendment, and a necessary and proper execution of the power conferred by the second? Blot out this act and deny the constitutional power to pass it, and the worst effects of slavery might speedily follow. It would be a virtual abrogation of the amendment.

It would be a remarkable anomaly if the national government, without this amendment, could confer citizenship on aliens of every race or color, and citizenship, with civil and political rights, on the ‘inhabitants' of Louisiana and Florida, without reference to race or color, and can not, with the help of the amendment, confer on those of the African race, who have been born and always lived within the United States, all that this law seeks to give them.

It was passed by the congress succeeding the one which proposed the amendment. Many of the members of both houses were the same. This fact is not without weight and significance. McCulloch v. Maryland, 4 Wheat. [17 U. S.] 401.

The amendment reversed and annulled the original policy of the constitution, which left it to each state to decide exclusively for itself whether slavery should or should not exist as a local institution, and what disabilities should attach to those of the servile race within its limits. The whites needed no relief or protection, and they are practically unaffected by the amendment. The emancipation which it wrought was an act of great national grace, and was doubtless intended to reach further in its effects as to every one within its scope, than the consequences of a manumission by a private individual.

We entertain no doubt of the constitutionality of the act in all its provisions. It gives only certain civil rights. Whether it was competent for congress to confer political rights also, involves a different inquiry. We have not found it necessary to consider the subject.

We are not unmindful of the opinion of the court of appeals of Kentucky, in the case of Brown v. Com. [4 Metc. (Ky.) 221]. With all our respect for the eminent tribunal from which it proceeded, we have found ourselves unable to concur in its conclusions. The constitutionality of the act is sustained by the supreme court of Indiana, and the chief justice of the court of appeals of Maryland, in able and well-considered opinions. Smith v. Moody, 26 Ind. 299; In re A. H. Somers.

We are happy to know that if we have erred the supreme court of the United States can revise our judgment and correct our error. The motion is overruled, and judgment will be entered upon the verdict.

Motion overruled.

United States v. Hall et al.

This was an indictment against John Hall, Jr., and William Pettigrew.

WOODS, Circuit Judge.

This is an indictment for a violation of the 6th section of the act of congress, approved May 31, 1870 [16 Stat. 140], entitled ‘An act to enforce the rights of citizens of the United States to vote in the several states of this Union, and for other purposes.’

It contains two counts. The first count in substance charges that the defendants did unlawfully and feloniously band and conspire together, with intent to injure, oppress, threaten and intimidate Charles Hays and others, *80naming them, citizens of the United States of America, with intent to prevent and hinder their free exercise and enjoyment of the right of freedom of speech, the same being a right and privilege granted and secured to them by the constitution of the United States.

The second count charges in substance that the defendants did unlawfully and feloniously band and conspire together, with intent to injure, oppress, threaten and intimidate William Miller and others, naming them, good and lawful citizens of the United States, with intent to prevent and hinder their free exercise and enjoyment of the right and privilege to peaceably assemble, the same being a right and privilege granted and secured to them by the constitution of the United States.

A demurrer is filed to this indictment based on the following grounds: (1) That the matters charged in said counts are not in violation of any right or privilege granted or secured by the constitution of the United States. (2) That they are not in violation of any provision of the act of congress, on which the indictment is based, or of any statute of the United States. (3) That each of said counts charges the commission of several and distinct offenses.

Article 1 of amendments to the constitution provides that congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people ‘peaceably to assemble and petition the government for a redress of grievances.’

It is not claimed by counsel for the United States that freedom of speech and the right peaceably to assemble are rights granted by the constitution, but it is asserted that they are rights recognized and secured.

On the other hand, counsel for defendants assert that while the constitution recognizes the existence of these rights it does not secure them. That the constitution only inhibits congress from impairing them, but that no such restriction applies to the states.

In the case of Permoli v. First Municipality, 3 How. [44 U. S.] 600, it was held by the supreme court that ‘the constitution makes no provision for protecting the citizens of the respective states in their religious liberties. That is left to the state constitutions and laws. Nor is there any inhibition imposed by the constitution of the United States in this respect upon the states.’ This language may well be applied also to the rights of freedom of speech, and the right peaceably to assemble, which are referred to in the same article of amendment as the right of religious liberty. So in Barron v. Baltimore, 7 Pet. [32 U. S.] 243, the same court held that ‘the provision in the fifth amendment declaring that private property shall not be taken for public use without due compensation is intended solely as a limitation upon the exercise of power by congress, and is not applicable to the legislation of the states.’ In Pervear v. Commonwealth, 5 Wall. [72 U. S.] 476, the supreme court held that the provision in the 8th article of amendment that ‘excessive fines' shall not be ‘imposed, not cruel and unusual punishments inflicted,’ applies to national, not to state, legislation.

The result of these and other authorities to the same effect, is that the right of freedom of speech and the right peaceably to assemble, and other rights enumerated in the first eight articles of amendment are protected by the constitution only against the legislation of congress, and not against the legislation of the states.

Nevertheless, it is true that these rights are secured to the people of the United States. The security may not be perfect and complete. These rights may be impaired by state legislation, yet they are secured against the action of congress. Can it be said, with truth, that the right of trial by jury, the right of the accused to be confronted with the witnesses against him, the right to be deprived of life, liberty or property without due process of law, are secured by the constitution of the United States?

We think that all rights which are protected against either national or state legislation may fairly be said to be secured rights.

If we assume, then, that the right of freedom of speech and the right peaceably to assemble are rights secured by the constitution of the United States, then the first two grounds of demurrer must be overruled, for the indictment alleges that the defendants did conspire together to injure and oppress the parties named with intent to prevent and hinder their free exercise and enjoyment of rights secured by the constitution, to wit: the right of freedom of speech and the right peaceably to assemble, and this the statute declares to be an offense.

The argument of this demurrer has taken a wide range, and questions not distinctly presented by it have been submitted to our consideration. As this discussion has called in question the power of congress to pass the act in which the indictment is founded, we will proceed to consider this objection to the indictment.

It is claimed that when congress is prohibited from interfering with a right by legislation, that does not authorize congress to protect that right by legislation; that as the states are not prohibited by the constitution from interference with the rights under consideration, congress, although prohibited itself from impairing these rights, has no grant of power to interfere for their protection as against the states.

That the first eight articles of amendment were passed as limitations upon the power of congress, and that the history of the constitution shows that in the adoption of these articles, it was not the purpose of the people to enlarge, but to restrain the power of congress. In the Federalist (article 84), Mr. Hamilton, in replying to the objection that the proposed constitution of the United States contained no bill of rights, says: ‘I affirm that bills of rights in the sense and to the extent they are contended for are not only unnecessary in the proposed constitution, but would be even dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed. *81I will not contend that such a provision will confer a regulating power, but it is evident it would afford to men disposed to usurp, a plausible pretense for claiming that power.’ The debates in the communities of the several states upon the adoption of the constitution and bill of rights proposed, especially in Massachusetts, New Hampshire and New York, show that the purpose of the people in the adoption of the first eight amendments was to limit, and not enlarge the powers of congress. See 1 Elliott's Debates, pp. 322, 326, 328. We are of opinion, therefore, that under the original constitution and the first eight articles of amendment, congress had not the power to protect by law the people of a state in the freedom of speech and of the press, in the free exercise of religion, or in the right peaceably to assemble. Jealousy of the power conferred on the congress by the original constitution suggested and accomplished the adoption of the first ten amendments to the constitution, and we entirely agree with counsel for defendants that it was the purpose of the people by these amendments to reserve to themselves and the states the power to secure the rights enumerated therein against the action of congress, and not give congress power to enforce them as against the states.

We have thus far considered this demurrer, and it seems to have been argued for the defense, without reference to the recent amendments to the constitution. As we are of opinion that the fourteenth amendment has a vital bearing upon the question raised, it is well that we should look to its provisions. It declares that ‘all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.’ By the original constitution citizenship in the United States was a consequence of citizenship in a state. By this clause this order of things is reversed. Citizenship in the United States is defined; it is made independent of citizenship in a state, and citizenship in a state is a result of citizenship in the United States. So that a person born or naturalized in the United States, and subject to its jurisdiction, is, without reference to state constitutions or laws, entitled to all the privileges and immunities secured by the constitution of the United States to citizens thereof.

The amendment proceeds: ‘No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.’

What are the privileges and immunities of citizens of the United States here referred to? They are undoubtedly those which may be denominated fundamental; which belong of right to the citizens of all free states, and which have at all times been enjoyed by the citizens of the several states which compose this Union from the time of their becoming free, independent and sovereign. Corfield v. Coryell [Case No. 3,230]. Among these we are safe in including those which in the constitution are expressly secured to the people, either as against the action of the federal or state governments. Included in these are the right of freedom of speech, and the right peaceably to assemble.

To recur now to the first ground of demurrer: are these rights secured to the people by the constitution of the United States?

We find that congress is forbidden to impair them by the first amendment, and the states are forbidden to impair them by the fourteenth amendment.

Can they not, then, be said to be completely secured?

They are expressly recognized, and both congress and the states are forbidden to abridge them. Before the fourteenth amendment, congress could not impair them, but the states might. Since the fourteenth amendment, the bulwarks about these rights have been strengthened, and now the states are positively inhibited from impairing or abridging them, and so far as the provisions of the organic law can secure them they are completely and absolutely secured.

The next clause of the fourteenth amendment reads: ‘Nor shall any state deny to any person within its jurisdiction the equal protection of the laws.’

Then follows an express grant of power to the federal government: ‘Congress may enforce this provision by appropriate legislation.’

From these provisions it follows clearly, as it seems to us, that congress has the power, by appropriate legislation, to protect the fundamental rights of citizens of the United States against unfriendly or insufficient state legislation, for the fourteenth amendment not only prohibits the making or enforcing of laws which shall abridge the privileges of the citizen, but prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws.

Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection. The citizen of the United States is entitled to the enforcement of the laws for the protection of his fundamental rights, as well as the enactment of such laws.

Therefore, to guard against the invasion of the citizen's fundamental rights, and to insure their adequate protection, as well against state legislation as state inaction, or incompetency, the amendment gives congress the power to enforce its provisions by appropriate legislation.

And as it would be unseemly for congress to interfere directly with state enactments, and as it cannot compel the activity of state officials, the only appropriate legislation it can make is that which will operate directly on offenders and offenses, and protect the rights which the amendment secures.

The extent to which congress shall exercise this power must depend on its discretion in view of the circumstances of each case. If the exercise of it in any case should seem to interfere with the domestice affairs of a state, it must *82be remembered that it is for the purpose of protecting federal rights, and these must be protected even though it interfere with state laws or the administration of state laws. We think, therefore, that the right of freedom of speech, and the other rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States, that they are secured by the constitution, that congress has the power to protect them by appropriate legislation.

We are further of opinion that the act on which this indictment is founded applies to cases of this kind, and that it is legislation appropriate to the end in view, namely, the protection of the fundamental rights of citizens of the United States.

But it is alleged for further ground of demurrer that this indictment charges the commission of several and distinct offenses. It charges that the defendants did band and conspire together, with intent to injure, oppress, threaten and intimidate, etc. The well-settled rule of criminal pleading is, that the operative words of a criminal statute may all be inserted in the indictment, connected by the conjunctive ‘and,’ and that proof of any one of the acts charged will sustain the indictment. This indictment is framed under this rule, and we think this objection to it not well taken.

We are of opinion, also, that this indictment is sufficiently definite and certain. The law describes particularly the offense created by it, and the indictment follows the language of the law. Our conclusion is, therefore, that the demurrer to this indictment must be overruled.

United States v. Given

This was an indictment against Archibald Given for violation of Act May 31, 1870 (16 Stat. 140). There was a verdict of guilty, and the case is now heard upon motion in arrest of judgment.

Opinion

STRONG, Circuit Justice.

The defendant was indicted for a violation of the second section of the act of congress of May 31, 1870, entitled ‘An act to enforce the right of citizens of the United States to vote in the several states of the Union, and for other purposes' (16 Stat. 140). That section enacts

‘that if by or under the authority of the constitution or laws of any state, or the laws of any territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and, by such constitution or laws, persons or officers are or shall be charged with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote; it shall be the duty of every such person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote, without distinction of race, color, or previous condition of servitude; and if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall for every such offence * * * be deemed guilty of a misdemeanor, and shall on conviction thereof be fined not less than five hundred dollars, or be imprisoned not less than one month, and not more than one year, or both, at the discretion of the court.’

At the trial a verdict of guilty was returned upon five counts of the indictment, and it is now moved in arrest of judgment that ‘the statute under which the indictment was framed is unauthorized by the constitution of the United States, and is in conflict therewith.’

The question thus presented is an important *1325 one, and I have given to it a careful consideration.

I agree that the legislative power of the federal government is not unlimited, and I accept the doctrine that congress can enact no law which is not authorized by the constitution, either expressly or by necessary implication.

But within its sphere the power of congress is as ample and complete as the necessities for its exercise require. A power is shorn of none of its extent by the fact that it is held by a branch of the federal government. The powers of that government are limited in number, but not in their nature. If, therefore, the grant of power can be found in the constitution, the validity of a law enacted under it is not dependent upon the extent to which the exercise of the power has been carried.

The thirteenth, fourteenth, and fifteenth amendments of the constitution have confessedly extended civil and political rights, and, I think, they have enlarged the powers of congress.

The primary object of the thirteenth, and of the first sections of the fourteenth and fifteenth was to secure to persons certain rights which they had not previously possessed.

Thus the thirteenth amendment made the right of personal liberty a constitutional right.

The fourteenth assured the right of citizenship to all persons born or naturalized in the United States, and subject to the jurisdiction thereof.

And the fifteenth defined partially that which constitutes citizenship and which belongs to citizenship as such. It recognizes, as a right of citizenship, exemption from disability on account of race, color, or previous condition of servitude, in the determination of a right to vote. It practically declares that citizenship, irrespective of color or race, confers a right to vote on equal terms or conditions with those that are required for voters of another race or color. It places white and colored persons on equal footing as respects the elective franchise, and it protects race against discrimination as fully as it protects color or previous condition. 

In all the states the right to vote at elections is held under certain restrictions. Among these it was not an uncommon one that the voter should be a free white citizen, or that he should not be of the African race. And until the amendment was adopted, it was in the power of any state to deny to any person who happened to be colored, or who happened to be of German or Irish descent, any participation in the elective franchise. Mere citizenship did not of course secure a right to vote. It was to remove the possibility of such discriminations that the fifteenth amendment was adopted. It leaves to the states, as before, the regulation of suffrage and of the qualification of electors within their limits, with the single restriction that they shall not make color, or race, or previous condition of servitude, a reason for discrimination.

It is true the amendment is in form a prohibition upon the United States, and upon the states, but it is not the less on that account an assertion of a constitutional right belonging to citizens as such. Surely it cannot be maintained that it conferred no rights upon persons. There are very many instances to be found in the constitution as it was before the recent amendments, in which rights of persons have been recognized and secured without any express grant. It is not uncommon to speak of them as existing, and to prohibit their infringement. The prohibition is itself an acknowledgment of the right.

Thus, the provision that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it, is a constitutional recognition that such a privilege does exist. Indeed very many of the prohibitions mentioned in the 9th section, and those upon the states mentioned in the 10th section, imply corresponding rights and exemptions belonging to persons. It is not necessary to maintain that because there are constitutional rights, recognized as such by the organic laws, congress has power to protect them, in all cases, by affirmative legislation. Where rights result from prohibitions upon the states, there seems to have been no provision made for their enforcement by congress.

There is, however, one clause in the constitution that deserves particular mention, when speaking of indirect recognition of rights, and of the power of congress to protect them. I refer to the 2d section of article fourth, which ordained as follows:

‘No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.’

This has always been understood as securing the right of a master to the return of his fugitive servant. It gives no express power to congress to legislate upon the subject. And such power is not found in the 8th section of the first article, unless it is in the last clause, and there only by a very liberal construction. Yet by the act of February 12, 1793 [1 Stat. 302], congress enacted not only that the person to whom such rights were secured, the person to whom such labor or service might be due his agent or attorney, might seize such fugitive from labor, but that any person who should knowingly and willingly obstruct or hinder the seizure, or rescue the fugitive, or harbor him after notice that he was a fugitive from labor, should be subject to a penalty, as well as to damages. 

This act was held to be a constitutional exercise of congressional power by the supreme court, as well as by state courts, in repeated adjudications. Prigg v. Com. [16 Pet. (41 U. S.) 539]. So on the 18th of September, 1850 (9 Stat. 462), another act was passed, with much more stringent provisions intended to secure this right of the master, imposing severe penalties for obstructing or hindering the exercise of the *1326 right, and fixing a minimum of damages to be recovered in a civil action. This second enactment has also been held constitutional by the supreme court of the United States.  Ableman v. Booth, 21 How. [62 U. S.] 506.

The discussion of this subject in Prigg v. Com. is worthy of careful attention, for it bears directly upon the question how far congress could, under the constitution, as it was before its recent amendments, interfere to protect rights recognized by it. I can only quote briefly from the opinion of the court as delivered by Judge Story, but the whole is important.

The argument commences with some general observations upon the principles to be applied in expounding the constitution. ‘It will,’ said the court, ‘probably be found, when we look to the character of the constitution itself, the objects which it seeks to obtain, the powers which it confers, the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications of its actual application to particular cases. And perhaps the safest rule of interpretation after all will be found to be, to look to the nature and effects of the particular powers, duties, and rights, with all the lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the end proposed.’ The court then proceeded to say: ‘Historically, it is well known that the object of this clause’ (that respecting persons held to service or labor) was to secure the citizens of the slave-holding states the complete right and title of ownership in their slaves, as property, in every state of the Union into which they might escape from the state where they were held in servitude. ‘How, then,’ said the court, ‘are we to interpret the language of this clause? The true answer is, in such a manner, as consistently with the words, shall fully and completely effectuate the whole object of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial and without any remedial power adequate to the end, and, by another mode, it will attain its just end, and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.’ The court then proceeded to show that if congressional legislation was not contemplated, if it was not legitimate, the right secured by the provision would, in a great variety of cases, be delusive and empty. Hence it was argued, that, if the constitution guaranteed the right, and required the delivery (as could not well be doubted), the natural inference was that the national government was clothed with the appropriate authority and functions to enforce it.

These principles reach much farther than is necessary to sustain the constitutionality of the 2d section of act of 1870. From the recognized existence of a constitutional right, and a duty not imposed in terms upon congress, power was deduced to protect the right by penal legislation. Said Chief Justice Taney: ‘I concur in all that is contained in the opinion concerning the power of congress to protect the citizens of the slave-holding states in the enjoyment of this right, and to provide by laws an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions.’

Thus it will be seen that the end to be secured was regarded as measuring the extent of the power existing to secure it. I am not, however, to be understood as holding that under the constitution, as it was prior to the recent amendments, all the rights therein recognized, or all of the duties enjoined, might have been protected and enforced by congressional legislation. Some, at least, if not all of the prohibitions upon the states, which imply personal rights, were left for enforcement to the federal judiciary, or to the comity and sense of right of the states themselves.

But the recent amendments have introduced great changes. If prior to 1870, when the fifteenth amendment became a part of our organic law, the right of a slave holder to the ownership of his fugitive slave in any state of the Union, and his right to delivery of such slave, was a right which congress was authorized to enforce and protect by penal legislation against individuals obstructing it, much more are the rights secured, recognized, and guaranteed by the thirteenth, fourteenth, and fifteenth amendments objects of legitimate protection by the law-making power of the federal government. Those amendments have left nothing to the comity of the states affecting the subjects of their provisions. They manifestly intended to secure the right guaranteed by them against any infringement from any quarter. Not only were the rights given—the right of liberty, the right of citizenship, and the right to participate with others in voting, on equal terms, without any discrimination on account of race, color, or previous condition of servitude—but power was expressly conferred upon congress to enforce the articles conferring the right.

The second section of the fifteenth article ordained that ‘the congress shall have power to enforce this article by appropriate legislation.’ Manifestly this section was adopted for a purpose. It must be so construed as to confer some effective power. But what meaning can it have if the first section, as contended by the defendant, is no more than an inhibition upon the United States, and upon the *1327 states as sovereignties, against discriminations? If the first section assures no rights to persons, how can congress enforce the article? Proprio vigore, the first section renders inoperative all adverse national or state legislation. To hold, therefore, that the second section was adopted merely to guard against national or state enactments, or to afford protection against ministerial or judicial acts of state governments, or of state officers acting in the line of their duty prescribed by a state, is to make superfluous and unmeaning all that was accomplished by the first section. And thus holding is to lose sight of the end sought to be attained by both sections, namely, the right to exemption from certain unfriendly discriminations. It is to subordinate that which is substance to mere form. 

I cannot think that such is a reasonable construction of this amendment. It was well known when it was adopted that in many quarters it was regarded with great disfavor. It might well have been anticipated that it would meet with evasion and hindrances, not from state legislatures, for their affirmative action was rendered powerless by it, or not from a state's judiciary, for their judgments denying the right were reviewable by federal courts, but by private persons and ministerial officers, by assessors, collectors, boards of registration, or election officers. And it might have been foreseen that by these agencies a right intended to be substantial could become incapable of enjoyment.

Suppose, as is largely the case in Delaware, the state passes no unfriendly act, but neglects to impose penalties upon its election officers for making discriminations on account of race or color, and provides no remedy for such wrongs, of what value is the constitutional provision unless it means that congress may interfere? I think such intervention was contemplated and expressly authorized. It was not intended to leave the right without full and adequate protection. Earlier prohibitions to the states were left without any express power of interference by congress; but these later, encountering as they did so much popular prejudice and working changes so radical, were fortified by grants to congress of power to carry them into full effect—that is, to enact any laws appropriate to give reality to the rights declared. That the second section of the act of May 31, 1870, is appropriate legislation to secure those rights and to give effect to the thirteenth amendment is perfectly plain. I am therefore of opinion that its enactment was within the power of congress. The first reason urged in arrest of the judgment cannot be sustained.

The second reason assigned in support of the motion is ‘that the provisions of the act of congress are not applicable to the duties imposed by the laws of Delaware upon the defendant, as charged in the indictment.’ I understand this to mean that the defendant is not a person or officer charged by the law of the state with the performance of duties in furnishing to citizens an opportunity to qualify themselves for voting, or to perform some prerequisite thereto. To determine how this is requires an examination of the state constitution and laws. By the constitution several things are required as prerequisites to the enjoyment of a right to vote. Among these is the payment of a county tax within two years next prior to the election day, which tax had been assessed at least six months before the election. To enable the performance of this prerequisite the law of the state makes provision for an annual assessment of a tax, and for the appointment of a collector to receive it. The defendant is such a tax collector, and his duties as such are clearly defined by law. He is required to collect all the rates and taxes mentioned in his duplicate, and pay over the same, except so far as allowances may be made to him by the levy court for delinquencies, commissions, or otherwise. He is required to return to the levy court, on the first Tuesday of March next after the date of his warrant, a true account of all delinquents. If then an allowance be made to him for the tax of any one returned delinquent, the tax is extinguished, and he is not permitted to receive it. With the levy court is the power of making the assessment lists, but no assessment can be made after the last day of March; nor can any alterations be made in the assessment list after that time. From the assessment list the collector's duplicate is made. The levy court is required at its March meeting to examine and settle the delinquent list of each collector, and strike the name of each delinquent from the assessment list, and the collector's duplicate, if the delinquent be dead, or has removed from the state; otherwise it is to remain upon the assessment, and be entered on the collector's duplicate for the ensuing year. These are all duties imposed by the statutes. In view of them, it is very plain that a tax collector is a person charged by the laws of the state with the performance of duties in furnishing to citizens an opportunity to qualify themselves for voting. He, and he alone, can receive the tax which must be paid before a vote can be given. He makes the return of delinquents, and if that return be false, or if he return the delinquent dead, or removed from the state, thereby causing his name to be stricken from the assessment list, there can be no assessed tax the payment of which is by the constitution a prerequisite for voting. A false return is a breach of the duty with which he is charged, leading directly to the disqualification of the voter. If such a return be made, or if the collector refuse or omit to collect the tax, and if this is done because of the race, color, or previous condition of servitude of any citizens, and with a purpose to make a discrimination against him, I have no doubt that the *1328 collector is within the purview of the act of congress. I think, therefore, the indictment is not faulty in this particular.

The remaining reason advanced in support of the motion in arrest of judgment is ‘that the defendant, being an officer of the state of Delaware, with no powers or duties but such as were prescribed by the constitution and laws of said state, is amenable only to said constitution and laws for any non-performance thereunder.’ If, by this is meant that a state officer, or a person deputed to perform duties on behalf of a state, is not amenable to the laws of the United States, that he owes no duties to such laws, and that he is not punishable for violation of them, I cannot assent to it. I agree that congress cannot impose upon state officers, as such, federal duties, but I fail to perceive that the act of 1870 has imposed any new duties upon any state officer. It is, I think, an exploded heresy that the national government cannot reach all individuals in the states. It cannot invade the state domain. It cannot take cognizance of offences against state sovereignty. But when state laws have imposed duties upon persons, whether officers or not, the performance or non-performance of which affects rights under the federal government (as, for example, to vote, the right of citizenship, or the right to vote, so far as it is secured), I have no doubt that congress may make the non-performance of those duties an offence against the United States, and may punish it accordingly. This is not invading the state domain. It has no reference to violations of state laws. They remain punishable in the state courts. Undoubtedly, an act, or an omission to act, may be an offence both against the state law and the laws of the United States. Any other doctrine would place the national government entirely within the power of the states, and would leave constitutional rights guarded only by the protection which each state might choose to extend to them. The fault of this objection to the indictment is, it fails to apprehend that the fifteenth amendment secured rights to every citizen, and that it gave congress power to protect them. It may be that congress cannot provide for the appointment of assessors, registers, or collectors, or for the existence of any officers who under state constitutions are necessary to enable persons to qualify for voting; but if they cannot, when such officers are appointed, provide that no constitutional discriminations shall be made, the thirteenth amendment is not worth the paper upon which it was written. I cannot construe the constitution in such a manner as to give it no effect. I am therefore constrained to hold that there is no sufficient reason for arresting the judgment in this case.

The motion in arrest of judgment is overruled.

An opinion was also delivered in this case by Bradford, District Judge, for which see [Case No. 15,211.]

Strauder v. West Virginia.

October Term, 1879

ERROR to the Supreme Court of Appeals of the State of West Virginia.

The facts are stated in the opinion of the court.

 Mr. Charles Devens and Mr. George O. Davenport for the plaintiff in error. Mr. Robert White, Attorney-General of West Virginia, and Mr. James W. Green, contra.

@1. The Fourteenth Amendment of the Constitution of the United States considered, and held to be one of a series of constitutional provisions having a common purpose; namely, to secure to a recently emancipated race, which had been held in slavery through many generations, all the civil rights that the superior race enjoy, and to give to it the protection of the general government, in the enjoyment of such rights, whenever they should be denied by the States. Whether the amendment had other, and if so what, purposes, not decided.

@2. The amendment not only gave citizenship and the privileges of citizenship to persons of color, but denied to any State the power to withhold from them the equal protection of the laws, and invested Congress with power, by appropriate legislation, to enforce its provisions.

@3. The amendment, although prohibitory in terms, confers by necessary implication a positive immunity, or right, most valuable to persons of the colored race,-the right to exemption from unfriendly legislation against them distinctively as colored,-exemption from discriminations, imposed by public authority, which imply legal inferiority in civil society, lessen the security of their rights, and are steps towards reducing them to the condition of a subject race.

@4. The statute of West Virginia, which, in effect, singles out and denies to colored citizens the right and privilege of participating in the administration of the law, as jurors, because of their color, though qualified in all other respects, is, practically, a brand upon them, and a discrimination against them which is forbidden by the amendment. It denies to such citizens the equal protection of the laws, since the constitution of juries is a very essential part of the protection which the trial by jury is intended to secure. They very idea of a jury is that it is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of persons having the same legal status in society as that which he holds.

@5. Where, as here, the State statute secures to every white man the right of trial by jury selected from, and without discrimination against, his race, and at the same time permits or requires such discrimination against the colored man because of his race, the latter is not equally protected by law with the former.

@6. Sect. 641 of the Revised Statutes, which declares that ‘when any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the past of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, . . . such suit or prosecution may, upon the petition of such defendant, filed in said State court, at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending,’ considered and held not to be in conflict with the Constitution of the United States.

MR. JUSTICE STRONG delivered the opinion of the court.

The plaintiff in error, a colored man, was indicated for murder in the Circuit Court of Ohio County, in West Virginia, on the 20th of October, 1874, and upon trial was convicted and sentenced. The record was then removed to the Supreme Court of the State, and there the judgment of the Circuit Court was affirmed. The present case is a writ of error to that court, and it is now, in substance, averred that at the trial in the State court the defendant (now plaintiff in error) was denied rights to which he was entitled under the Constitution and laws of the United States.

In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented his petition, verified by his oath, praying for a removal of the cause into the Circuit Court of the United States, assigning, as ground for the removal, that ‘by virtue of the laws of the State of West Virginia no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State; that white men are so eligible, and that by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man.’ This petition was denied by the State court, and the cause was forced to trial.

Motions to quash the venire, ‘because the law under which*305 it was issued was unconstitutional, null, and void,’ and successive motions to challenge the array of the panel, for a new trial, and in arrest of judgment were then made, all of which were overruled and made by exceptions parts of the record.

The law of the State to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March, 1873 (Acts of 1872-73, p. 102), and it is as follows: ‘All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.’ The persons excepted are State officials.

In this court, several errors have been assigned, and the controlling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color; and, second, if he has such a right, and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States?

It is to be observed that the first of these questions is not whether a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury.

The questions are important, for they demand a construction of the recent amendments of the Constitution. If the defendant has a right to have a jury selected for the trial of his case without discrimination against all persons of his race or color, because of their race or color, the right, if not created, is protected by those amendments, and the legislation of Congress under them. The Fourteenth Amendment ordains that ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or *306enforce any laws which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’

This is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall. 36), cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions *307 by appropriate legislation. To quote the language used by us in the Slaughter-House Cases, ‘No one can fail to be impressed with the one pervaiding purpose found in all the amendments, lying at the foundation of each, and without which none of them would have been suggested,-we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.’ So again: ‘The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied, and by it [the Fourteenth Amendment] such laws were forbidden. If, however, the States did not conform their laws to its requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation.’ And it was added, ‘We doubt very much whether any action of a State, not directed by way of discrimination against the negroes, as a class, will ever be held to come within the purview of this provision.’

If this is the spirit and meaning of the amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the *308 colored race,-the right to exemption from unfriendly legislation against them distinctively as colored,-exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.

That the West Virginia statute respecting juries-the statute that controlled the selection of the grand and petit jury in the case of the plaintiff in error-is such a discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. If in those States where the colored people constitute a majority of the entire population a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating equally with the the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal protection of the laws. Nor if a law should be passed excluding all naturalized Celtic Irishmen, would there by any doubt of its inconsistency with the spirit of the amendment. The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.

The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, ‘The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by *309 the Great Charter.’ It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called ‘packing juries.’ It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the constitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the States in which they resided; and the apprehension that through prejudice they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the amendment would have been unnecessary, and it might have been left to the States to extend equality of protection.

In view of these considerations, it is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?*310

We do not say that within the limits from which it is not excluded by the amendment a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it. To quote further from 16 Wall.,supra: ‘In giving construction to any of these articles [amendments], it is necessary to keep the main purpose steadily in view.’ ‘It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.’ We are not now called upon to affirm or deny that it had other purposes.

The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.

Concluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State, it remains only to be considered whether the power of Congress to enforce the provisions of the Fourteenth Amendment by appropriate legislation is sufficient to justify the enactment of sect. 641 of the Revised Statutes.

A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress. Prigg v.The Commonwealth of Pennsylvania, 16 Pet. 539. So in *311United States v. Reese (92 (U. S. 214), it was said by the Chief Justice of this court: ‘Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected.’ But there is express authority to protect the rights and immunities referred to in the Fourteenth Amendment, and to enforce observance of them by appropriate congressional legislation. And one very efficient and appropriate mode of extending such protection and securing to a party the enjoyment of the right or immunity, is a law providing for the removal of his case from a State court, in which the right is denied by the State law, into a Federal court, where it will be upheld. This is an ordinary mode of protecting rights and immunities conferred by the Federal Constitution and laws. Sect. 641 is such a provision. It enacts that ‘when any civil suit or criminal prosecution is commenced in any State court for any cause whatsoever against any person who is denied, or cannot enforce, in the judicial tribunals of the State, or in the part of the State where such prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial, or final hearing of the case, stating the facts, and verified by oath, be removed before trial into the next Circuit Court of the United States to be held in the district where it is pending.’

This act plainly has reference to sects. 1977 and 1978 of the statutes which partially enumerate the rights and immunities intended to be guaranteed by the Constitution, the first of which declares that ‘all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, *312 pains, penalties, taxes, licenses, and exactions of every kind, and to no other.’ This act puts in the form of a statute what had been substantially ordained by the constitutional amendment. It was a step towards enforcing the constitutional provisions. Sect. 641 was an advanced step, fully warranted, we think, by the fifth section of the Fourteenth Amendment.

We have heretofore considered and affirmed the constitutional power of Congress to authorize the removal from State courts into the circuit courts of the United States, before trial, of criminal prosecutions for alleged offences against the laws of the State, when the defence presents a Federal question, or when a right under the Federal Constitution or laws is involved. Tennessee v. Davis, supra, p. 257. It is unnecessary now to repeat what we there said.

That the petition of the plaintiff in error, filed by him in the State court before the trial of his case, made a case for removal into the Federal Circuit Court, under sect. 641, is very plain, if, by the constitutional amendment and sect. 1977 of the Revised Statutes, he was entitled to immunity from discrimination against him in the selection of jurors, because of their color, as we have endeavored to show that he was. It set forth sufficient facts to exhibit a denial of that immunity, and a denial by the statute law of the State.

There was error, therefore, in proceeding to the trial of the indictment against him after his petition was filed, as also in overruling his challenge to the array of the jury, and in refusing to quash the panel.

The judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with instructions to reverse the judgment of the Circuit Court of Ohio county; and it is

So ordered.

MR. JUSTICE FIELD.

I dissent from the judgment of the court in this case, on the grounds stated in my opinion in Ex parte Virginia (infra, p. 349), and MR. JUSTICE CLIFFORD concurs with me.

U.S.,1879 Strauder v. West Virginia 100 U.S. 303, 10 Otto 303, 1879 WL 16562 (U.S.W.Va.), 25 L.Ed. 664  

Slaughter-House Cases. The Butchers’ Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company. Paul Esteben, L. Ruch, J. P. Rouede, W. Maylie, S. Firmberg, B. Beaubay, William Fagan, J. D. Broderick, N. Seibel, M. Lannes, J. Gitzinger, J. P. Aycock, D. Verges, The Live-Stock Dealers’ and Butchers’ Association of New Orleans, and Charles Cavaroc v. The State of Louisiana, ex rel. S. Belden, Attorney-General. The Butchers’ Benevolent Association of New Orleans v. The Crescent City Live-Stock. Landing and Slaughter-House Company.

December Term, 1872*38 ERROR to the Supreme Court of Louisiana.

The three cases—the parties to which as plaintiffs and defendants in error, are given specifically as a sub-title, at the head of this report, but which are reported together also under the general name which, in common parlance, they had acquired—grew out of an act of the legislature of the State of Lousiana, entitled: 'An act to protect the health of the City of New Orleans, to locate the stock landings and slaughter-houses, and to incorporate 'The Crescent City Live-Stock Landing and Slaughter-House Company," which was approved on the 8th of March, 1869, and went into operation on the 1st of June following; and the three cases were argued together.

The act was as follows:

'SECTION 1. Be it enacted, &c., That from and after the first day of June, A.D. 1869, it shall not be lawful to land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-landing, yards, pens, slaughter-houses, or abattoirs at any point or place within the city of New Orleans, or the parishes of Orleans, Jefferson, and St. Bernard, or at any point or place on the east bank of the Mississippi River within the corporate limits of the city of New Orleans, or at any point on the west bank of the Mississippi River, above the present depot of the New Orleans, Opelousas, and Great Western Railroad Company, except that the 'Crescent City Stock Landing and Slaughter-House Company' may establish themselves at any point or place as hereinafter provided. Any person or persons, or corporation or company carrying on any business or doing any act in contravention of this act, or landing, slaughtering or keeping any animal or animals in violation of this act, shall be liable to a fine of $250, for each and*39 every violation, the same to be recoverable, with costs of suit, before any court of competent jurisdiction.'

The second section of the act created one Sanger and sixteen other persons named, a corporation, with the usual privileges of a corporation, and including power to appoint officers, and fix their compensation and term of office, and to fix the amount of the capital stock of the corporation and the number of shares thereof.

The act then went on:

'SECTION 3. Be it further enacted, &c., That said company or corporation is hereby authorized to establish and erect at its own expense, at any point or place on the east bank of the Mississippi River within the parish of St. Bernard, or in the corporate limits of the city of New Orleans, below the United States Barracks, or at any point or place on the west bank of the Mississippi River below the present depot of the New Orleans, Opelousas, and Great Western Railroad Company, wharves, stables, sheds, yards, and buildings necessary to land, stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals; and from and after the time such buildings, yards, &c., are ready and complete for business, and notice thereof is given in the official journal of the State, the said Crescent City Live-Stock Landing and Slaughter-House Company shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privileges granted by the provisions of this act; and cattle and other animals destined for sale or slaughter in the city of New Orleans, or its environs, shall be landed at the live-stock landings and yards of said company, and shall be yarded, sheltered, and protected, if necessary, by said company or corporation; and said company or corporation shall be entitled to have and receive for each steamship landing at the wharves of the said company or corporation, $10; for each steamboat or other water craft, $5; and for each horse, mule, bull, ox, or cow landed at their wharves, for each and every day kept, 10 cents; for each and every hog, calf, sheep, or goat, for each and every day kept, 5 cents, all without including the feed; and said company or corporation shall be entitled to keep and detain each and all of said animals until said charges are fully paid. But*40 if the charges of landing, keeping, and feeding any of the aforesaid animals shall not be paid by the owners thereof after fifteen days of their being landed and placed in the custody of the said company or corporation, then the said company or corporation, in order to reimburse themselves for charges and expenses incurred, shall have power, by resorting to judicial proceedings, to advertise said animals for sale by auction, in any two newspapers published in the city of New Orleans, for five days; and after the expiration of said five days, the said company or corporation may proceed to sell by auction, as advertised, the said animals, and the proceeds of such sales shall be taken by the said company or corporation, and applied to the payment of the charges and expenses aforesaid, and other additional costs; and the balance, if any, remaining from such sales, shall be held to the credit of and paid to the order or receipt of the owner of said animals. Any person or persons, firm or corporation violating any of the provisions of this act, or interfering with the privileges herein granted, or landing, yarding, or keeping any animals in violation of the provisions of this act, or to the injury of said company or corporation, shall be liable to a fine or penalty of $250, to be recovered with costs of suit before any court of competent jurisdiction.

'The company shall, before the first of June, 1869, build and complete A GRAND SLAUGHTER-HOUSE of sufficient capacity to accommodate all butchers, and in which to slaughter 500 animals per day; also a sufficient number of sheds and stables shall be erected before the date aforementioned, to accommodate all the stock received at this port, all of which to be accomplished before the date fixed for the removal of the stock landing, as provided in the first section of this act, under penalty of a forfeiture of their charter.

'SECTION 4. Be it further enacted, &c., That the said company or corporation is hereby authorized to erect, at its own expense, one or more landing-places for live stock, as aforesaid, at any points or places consistent with the provisions of this act, and to have and enjoy from the completion thereof, and after the first day of June, A.D. 1869, the exclusive privilege of having landed at their wharves or landing-places all animals intended for sale or slaughter in the parishes of Orleans and Jefferson; and are hereby also authorized (in connection) to erect at its own expense one or more slaughter-houses, at any points or places*41 consistent with the provisions of this act, and to have and enjoy, from the completion thereof, and after the first day of June, A.D. 1869, the exclusive privilege of having slaughtered therein all animals, the meat of which is destined for sale in the parishes of Orleans and Jefferson.

'SECTION 5. Be it further enacted, &c., That whenever said slaughter-houses and accessory buildings shall be completed and thrown open for the use of the public, said company or corporation shall immediately give public notice for thirty days, in the official journal of the State, and within said thirty days' notice, and within, from and after the first day of June, A.D. 1869, all other stock landings and slaughter-houses within the parishes of Orleans, Jefferson, and St. Bernard shall be closed, and it will no longer be lawful to slaughter cattle, hogs, calves, sheep, or goats, the meat of which is determined for sale within the parishes aforesaid, under a penalty of $100, for each and every offence, recoverable, with costs of suit, before any court of competent jurisdiction; that all animals to be slaughtered, the meat whereof is determined for sale in the parishes of Orleans or Jefferson, must be slaughtered in the slaughter-houses erected by the said company or corporation; and upon a refusal of said company or corporation to allow and animal or animals to be slaughtered after the same has been certified by the inspector, as hereinafter provided, to be fit for human food, the said company or corporation shall be subject to a fine in each case of $250, recoverable, with costs of suit, before any court of competent jurisdiction; said fines and penalties to be paid over to the auditor of public accounts, which sum or sums shall be credited to the educational fund.

'SECTION 6. Be it further enacted, &c., That the governor of the State of Louisiana shall appoint a competent person, clothed with police powers, to act as inspector of all stock that is to be slaughtered, and whose duty it will be to examine closely all animals intended to be slaughtered, to ascertain whether they are sound and fit for human food or not; and if sound and fit for human food, to furnish a certificate stating that fact, to the owners of the animals inspected; and without said certificate no animals can be slaughtered for sale in the slaughter-houses of said company or corporation. The owner of said animals so inspected to pay the inspector 10 cents for each and every animal so inspected, one-half of which fee the said inspector shall retain for his services, and the other half of said fee shall be*42 paid over to the auditor of public accounts, said payment to be made quarterly. Said inspector shall give a good and sufficient bond to the State, in the sum of $5000, with sureties subject to the approval of the governor of the State of Louisiana, for the faithful performance of his duties. Said inspector shall be fined for dereliction of duty $50 for each neglect. Said inspector may appoint as many deputies as may be necessary. The half of the fees collected as provided above, and paid over to the auditor of public accounts, shall be placed to the credit of the educational fund.

'SECTION 7. Be it further enacted, &c., That all persons slaughtering or causing to be slaughtered, cattle or other animals in said slaughter-houses, shall pay to the said company or corporation the following rates or perquisites, viz.: For all beeves, $1 each; for all hogs and calves, 50 cents each; for all sheep, goats, and lambs, 30 cents each; and the said company or corporation shall be entitled to the head, feet, gore, and entrails of all animals excepting hogs, entering the slaughter-houses and killed therein, it being understood that the heart and liver are not considered as a part of the gore and entrails, and that the said heart and liver of all animals slaughtered in the slaughter-houses of the said company or corporation shall belong, in all cases, to the owners of the animals slaughtered.

'SECTION 8. Be it further enacted, &c., That all the fines and penalties incurred for violations of this act shall be recoverable in a civil suit before any court of competent jurisdiction, said suit to be brought and prosecuted by said company or corporation in all cases where the privileges granted to the said company or corporation by the provisions of this act are violated or interfered with; that one-half of all the fines and penalties recovered by the said company or corporation [Sic in copy—REP.], in consideration of their prosecuting the violation of this act, and the other half shall be paid over to the auditor of public accounts, to the credit of the educational fund.

'SECTION 9. Be it further enacted, &c., That said Crescent City Live-Stock Landing and Slaughter-House Company shall have the right to construct a railroad from their buildings to the limits of the city of New Orleans, and shall have the right to run cars thereon, drawn by horses or other locomotive power, as they may see fit; said railroad to be built on either of the public roads running along the levee on each side of the Mississippi*43 River. The said company or corporation shall also have the right to establish such steam ferries as they may see fit to run on the Mississippi River between their buildings and any points or places on either side of said river.

'SECTION 10. Be it further enacted, &c., That at the expiration of twenty-five years from and after the passage of this act the privileges herein granted shall expire.'

The parish of Orleans containing (as was said1) an area of 150 square miles; the parish of Jefferson of 384; and the parish of St. Bernard of 620; the three parishes together 1154 square miles, and they having between two and three hundred thousand people resident therein, and prior to the passage of the act above quoted, about, 100 persons employed daily in the business of procuring, preparing, and selling animal food, the passage of the act necessarily produced great feeling. Some hundreds of suits were brought on the one side or on the other; the butchers, not included in the 'monopoly' as it was called, acting sometimes in combinations, in corporations, and companies, and sometimes by themselves; the same counsel, however, apparently representing pretty much all of them. The ground of the opposition to the slaughter-house compeny's pretensions, so far as any cases were finally passed on in this court was, that the act of the Louisiana legislature made a monopoly and was a violation of the most important provisions of the thirteenth and fourteenth Articles of Amendment to the Constitution of the United States. The language relied on of these articles is thus:

'Neither slavery nor involuntary servitude except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, nor any place subject to their jurisdiction.'

'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.

*44'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

The Supreme Court of Louisiana decided in favor of the company, and five of the cases came into this court under the 25th section of the Judiciary Act in December, 1870; where they were the subject of a preliminary motion by the plaintiffs in error for an order in the nature of a supersedeas. After this, that is to say, in March, 1871, a compromise was sought to be effected, and certain parties professing, apparently, to act in a representative way in behalf of the opponents to the company, referring to a compromise that they assumed had been effected, agreed to discontinue 'all writs of error concerning the said company, now pending in the Supreme Court of the United States;' stipulating further 'that their agreement should be sufficient authority for any attorney to appear and move for the dismissal of all said suits.' Some of the cases were thus confessedly dismissed. But the three of which the names are given as a sub-title at the head of this report were, by certain of the butchers, asserted not to have been dismissed. And Messrs. M. H. Carpenter, J. S. Black, and T. J. Durant, in behalf of the new corporation, having moved to dismiss them also as embraced in the agreement, affidavits were filed on the one side and on the other; the affidavits of the butchers opposed to the 'monopoly' affirming that they were plaintiffs in error in these three cases, and that they never consented to what had been done, and that no proper authority had been given to do it. This matter was directed to be heard with the merits. The case being advanced was first heard on these, January 11th, 1872; Mr. Justice Nelson being indisposed and not in his seat. Being ordered for reargument, it was heard again, February 3d, 4th, and 5th, 1873.

Mr. John A. Campbell, and also Mr. J. Q. A. Fellows, argued the case at much length and on the authorities, in behalf of*45 the plaintiffs in error. The reporter cannot pretend to give more than such an abstract of the argument as may show to what the opinion of the court was meant to be responsive.

I. The learned counsel quoting Thiers,2 contended that 'the right to one's self, to one's own faculties, physical and intellectual, one's own brain, eyes, hands, feet, in a word to his soul and body, was an incontestable right; one of whose enjoyment and exercise by its owner no one could complain, and one which no one could take away. More than this, the obligation to labor was a duty, a thing ordained of God, and which if submitted to faithfully, secured a blessing to the human family.' Quoting further from Turgot, De Tocqueville, Buckle, Dalloz, Leiber, Sir G. C. Lewis, and others, the counsel gave a vivid and very interesting account of the condition and grievances of the lower orders in various countries of Europe, especially in France, with its banalites and 'seigneurs justiciers,' during those days when 'the prying eye of the government followed the butcher to the shambles and the baker to the oven;' when 'the peasant could not cross a river without paying to some nobleman a toll, nor take the produce which he raised to market until he had bought leave to do so; nor consume what remained of his grain till he had sent it to the lord's mill to be ground, nor full his cloths on his own works, nor sharpen his tools at his own grindstone, nor make wine, oil, or cider at his own press;' the days of monopolies; monopolies which followed men in their daily avocations, troubled them with its meddling spirit, and worst of all diminished their responsibility to themselves. Passing from Scotland, in which the cultivators of each barony or regality were obliged to pay a 'multure' on each stack of hay or straw reaped by the farmer 'thirlage' or 'thraldom,' as it was called—and when lands were subject to an 'astriction' astricting them and their inhabitants to particular mills for the grinding of grain that was raised on them, and coming to Great Britain, the counsel adverted to the reigns of Edward III, and Richard*46 II, and their successors, when the price of labor was fixed by law, and when every able-bodied man and woman, not being a merchant or craftsman, was 'bounden' to serve at the wages fixed, and when to prevent the rural laborer from seeking the towns he was forbidden to leave his own village. It was in England that the earliest battle for civil liberty had been made. Macaulay thus described it:3

'It was in the Parliament of 1601, that the opposition which had, during forty years, been silently gathering and husbanding strength, fought its first great battle and won its first victory. The ground was well chosen. The English sovereigns had always been intrusted with the supreme direction of commercial police. It was their undoubted prerogative to regulate coins, weights, measures, and to appoint fairs, markets, and ports. The line which bounded their authority over trade, had, as usual, been but loosely drawn. They therefore, as usual, encroached on the province which rightfully belonged to the legislature. The encroachment was, as usual, patiently borne, till it became serious. But at length the Queen took upon herself to grant patents of monopoly by scores. There was scarcely a family in the realm that did not feel itself aggrieved by the oppression and extortion which the abuse naturally caused. Iron, oil, vinegar, coal, lead, starch, yarn, leather, glass, could be bought only at exorbitant prices. The House of Commons met in an angry and determined mood. It was in vain that a courtly minority blamed the speaker for suffering the acts of the Queen's highness to be called in question. The language of the discontented party was high and menacing, and was echoed by the voice of the whole nation. The coach of the chief minister of the crown was surrounded by an indignant populace, who cursed monopolies, and exclaimed that the prerogative should not be allowed to touch the old liberties of England.'

Macaulay proceeded to say that the Queen's reign was in danger of a shameful and disgraceful end, but that she, with admirable judgment, declined the contest and redressed the grievance, and in touching language thanked the Commons for their tender care of the common weal.

*47The great grievance of our ancestors about the time that they largely left England, was this very subject. Sir John Culpeper, in a speech in the Long Parliament, thus spoke of these monopolies and pollers of the people:

'They are a nest of wasps—a swarm of vermin which have overcrept the land. Like the frogs of Egypt they have gotten possession of our dwellings, and we have scarce a room free from them. They sup in our cup; they dip in our dish; they sit by our fire. We find them in the dye-fat, wash-bowl, and powdering-tub. They share with the butler in his box. They will not bait us a pin. We may not buy our clothes without their brokage. These are the leeches that have sucked the commonwealth so hard that it is almost hectical. Mr. Speaker! I have echoed to you the cries of the Kingdom. I will tell you their hopes. They look to Heaven for a blessing on this Parliament.'

Monopolies concerning wine, coal, salt, starch, the dressing of meat in taverns, beavers, belts, bone-lace, leather, pins, and other things, to the gathering of rags, are referred to in this speech.

But more important than these discussions in Parliament were the solemn judgments of the courts of Great Britain. The great and leading case was that reported by Lord Coke, The Case of Monopolies.4 The patent was granted to Darcy to buy beyond the sea all such playing-cards as he thought good, and to utter and sell them within the kingdom, and that he and his agents and deputies should have the whole trade, traffic, and merchandise of playing-cards, and that another person and none other should have the making of playing-cards within the realm. A suit was brought against a citizen of London for selling playing-cards, and he pleaded that being a citizen free of the city he had a right to do so. And——

'Resolved (Popham, C.J.) per totam Curiam, that the said grant of the plaintiff of the sole making of cards within the realm, was utterly void, and for two reasons:*48'1. That it is a monopoly and against the common law.

'2. That it is against divers acts of Parliament.'

[The learned counsel read Sir Edward Coke's report of the judgment in this case, which was given fully in the brief at length, seeking to apply it to the cases before the court.]

It was from a country which had been thus oppressed by monopolies that our ancestors came. And a profound conviction of the truth of the sentiment already quoted from M. Thiers—that every man has a right to his own faculties, physical and intellectual, and that this is a right, one of which no one can complain, and no one deprive him—was at the bottom of the settlement of the country by them. Accordingly, free competition in business, free enterprise, the absence of all exactions by petty tyranny, of all spoliation of private right by public authority—the suppression of sinecures, monopolies, titles of nobility, and exemption from legal duties—were exactly what the colonists sought for and obtained by their settlement here, their long contest with physical evils that attended the colonial condition, their struggle for independence, and their efforts, exertions, and sacrifices since.

Now, the act of the Louisiana legislature was in the face of all these principles; it made it unlawful for men to use their own land for their own purposes; made it unlawful to any except the seventeen of this company to exercise a lawful and necessary business for which others were as competent as they, for which at least one thousand persons in the three parishes named had qualified themselves, had framed their arrangements in life, had invested their property, and had founded all their hopes of success on earth. The act was a pure MONOPOLY; as such against common right, and void at the common law of England. And it was equally void by our own law. The case of The Norwich Gaslight Company v. The Norwich City Gaslight Company,5 a case in Connecticut, and more pointedly still, The City of Chicago v. Rumpff,6> a case in Illinois, and The Mayor of the City of Hudson v. Thorne,7*49 a case in New York, were in entire harmony with Coke's great case, and declared that monopolies are against common right.8

How, indeed, do authors and inventors maintain a monopoly in even the works of their own brain? in that which in a large sense may be called their own. Only through a provision of the Constitution preserving such works to them. Many State constitutions have denounced monopolies by name, and it is certain that every species of exclusive privilege is an offence to the people, and that popular aversior to them does but increase the more largely that they are granted.

II. But if this monopoly were not thus void at common law, would be so under both the thirteenth and the fourteenth amendments.

The thirteenth amendment prohibits 'slavery and involuntary servitude.' The expressions are ancient ones, and were familiar even before the time when they appeared in the great Ordinance of 1787, for the government of our vast Northwestern Territory; a territory from which great States were to arise. In that ordinance that are associated with enactments affording comprehensive protection for life, liberty, and property; for the spread of religion, morality, and knowledge; for maintaining the inviolability of contracts, the freedom of navigation upon the public rivers, and the unrestrained conveyance of property by contract and devise, and for equality of children in the inheritance of patrimonial estates. The ordinance became a law after Great Britain, in form the most popular government in Europe, had been expelled from that territory because of 'injuries and usurpations having in direct object the establishment of an absolute tyranny over the States.' Feudalism at that time prevailed in nearly all the kingdoms of Europe, and serfdom and servitude and feudal service depressed their people to the level of slaves. The prohibition of 'slavery and involuntary servitude' in every form and degree, except as a*50 sentence upon a conviction for crime, comprises much more than the abolition or prohibition of African slavery. Slavery in the annals of the world had been the ultimate solution of controversies between the creditor and debtor; the conqueror and his captive; the father and his child; the state and an offender against its laws. The laws might enslave a man to the soil. The whole of Europe in 1787 was crowded with persons who were held as vassals to their landlord, and serfs on his dominions. The American constitution for that great territory was framed to abolish slavery and involuntary servitude in all forms, and in all degrees in which they have existed among men, except as a punishment for crime duly proved and adjudged.

Now, the act of which we complain has made of three parishes of Louisiana 'enthralled ground.' 'The seventeen' have astricted not only the inhabitants of those parishes, but of all other portions of the earth who may have cattle or animals for sale or for food, to land them at the wharves of that company (if brought to that territory), to keep them in their pens, yards, or stables, and to prepare them for market in their abattoir or slaughter-house. Lest some competitor may present more tempting or convenient arrangements, the act directs that all of these shall be closed on a particular day, and prohibits any one from having, keeping, or establishing any other; and a peremptory command is given that all animals shall be sheltered, preserved, and protected by this corporation, and by none other, under heavy penalties.

Is not this 'a servitude?' Might it not be so considered in a strict sense? It is like the 'thirlage' of the old Scotch law and the banalites of seignioral France; which were servitudes undoubtedly. But, if not strictly a servitude, it is certainly a servitude in a more popular sense, and, being an enforced one, it is an involuntary servitude. Men are surely subjected to a servitude when, throughout three parishes, embracing 1200 square miles, every man and every woman in them is compelled to refrain from the use of their own land and exercise of their own industry and the improvement*51 of their own property, in a way confessedly lawful and necessary in itself, and made unlawful and unnecessary only because, at their cost, an exclusive privilege is granted to seventeen other persons to improve and exercise it for them. We have here the 'servients' and the 'dominants' and the 'thraldom' of the old seignioral system. The servients in this case are all the inhabitants in any manner using animals brought to the markets for sale or for slaughter. The dominants are 'the seventeen' made into a corporation, with these seignioral rights and privileges. The masters are these seventeen, who alone can admit or refuse other members to their corporation. The abused persons are the community, who are deprived of what was a common right and bound under a thraldom.

III. The act is even more plainly in the face of the fourteenth amendment. That amendment was a development of the thirteenth, and is a more comprehensive exposition of the principles which lie at the foundation of the thirteenth.

Slavery had been abolished as the issue of the civil war. More than three millions of a population lately servile, were liberated without preparation for any political or civil duty. Besides this population of emancipated slaves, there was a large and growing population who came to this country without education in the laws and constitution of the country, and who had begun to exert a perceptible influence over our government. There were also a large number of unsettled and difficult questions of State and National right that had no other settlement or solution but what the war had afforded. It had been maintained from the origin of the Constitution, by one political party—men of a high order of ability, and who exerted a great influence—that the State was the highest political organization in the United States; that through the consent of the separate States the Union had been formed for limited purposes; that there was no social union except by and through the States, and that in extreme cases the several States might cancel the obligations to the Federal government and reclaim the allegiance and fidelity of its members. Such were the doctrines of Mr.

*52Calhoun, and of others; both those who preceded and those who have followed him. It is nowhere declared in the Constitution what 'a citizen' is, or what constitutes citizenship; and what ideas were entertained of citizenship by one class in our country may be seen in the South Carolina case of Hunt v. The State, where Harper, J., referring to the arguments of Messrs. Petigru, Blanding, McWillie, and Williams—men eminent in the South as jurists—who were opposing nullification, says:

'It has been admitted in argument by all the counsel except one, that in case of a secession by the State from the Union, the citizens and constituted authorities would be bound to obey and give effect to the act.'

But the fourteenth amendment does define citizenship and the relations of citizens to the State and Federal government. It ordains that 'all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State where they reside.' Citizenship in a State is made by residence and without reference to the consent of the State. Yet, by the same amendment, when it exists, no State can abridge its privileges or immunities. The doctrine of the 'States-Rights party,' led in modern times by Mr. Calhoun, was, that there was no citizenship in the whole United States, except sub modo and by the permission of the States. According to their theory the United States had no integral existence except as an incomplete combination among several integers. The fourteenth amendment struck at, and forever destroyed, all such doctrines. It seems to have been made under an apprehension of a destructive faculty in the State governments. It consolidated the several 'integers' into a consistent whole. Were there Brahmans in Massachusetts, 'the chief of all creatures, and with the universe held in charge for them,' and Soudras in Pennsylvania, 'who simply had life through the benevolence of the other,' this amendment places them on the same footing. By it the national principle has received an indefinite enlargement.

*53The tie between the United States and every citizen in every part of its own jurisdiction has been made intimate and familiar. To the same extent the confederate features of the government have been obliterated. The States in their closest connection with the members of the State, have been placed under the oversight and restraining and enforcing hand of Congress. The purpose is manifest, to establish through the whole jurisdiction of the United States ONE PEOPLE, and that every member of the empire shall understand and appreciate the fact that his privileges and immunities cannot be abridged by State authority; that State laws must be so framed as to secure life, liberty, property from arbitrary violation and secure protection of law to all. Thus, as the great personal rights of each and every person were established and guarded, a reasonable confidence that there would be good government might seem to be justified. The amendment embodies all that the statesmanship of the country has conceived for accommodating the Constitution and the institutions of the country to the vast additions of territory, increase of the population, multiplication of States and Territorial governments, the annual influx of aliens, and the mighty changes produced by revolutionary events, and by social, industrial, commercial development. It is an act of Union, an act to determine the reciprocal relations of the millions of population within the bounds of the United States—the numerous State governments and the entire United States administered by a common government—that they might mutually sustain, support, and co-operate for the promotion of peace, security, and the assurance of property and liberty.

Under it the fact of citizenship does not depend upon parentage, family, nor upon the historical division of the land into separate States, some of whom had a glorious history, of which its members were justly proud. Citizenship is assigned to nativity in any portion of the United States, and every person so born is a citizen. The naturalized person acquires citizenship of the same kind without any action of the State at all. So either may by this title of citizenship*54 make his residence at any place in the United States, and under whatever form of State administration, he must be treated as a citizen of that State. His 'privileges and immunities' must not be impaired, and all the privileges of the English Magna Charta in favor of freemen are collected upon him and overshadow him as derived from this amendment. The States must not weaken nor destroy them. The comprehensiveness of this amendment, the natural and necessary breadth of the language, the history of some of the clauses; their connection with discussions, contests, and domestic commotions that form landmarks in the annals of constitutional government, the circumstances under which it became part of the Constitution, demonstrate that the weighty import of what it ordains is not to be misunderstood.

From whatever cause originating, or with whatever special and present or pressing purpose passed, the fourteenth amendment is not confined to the population that had been servile, or to that which had any of the disabilities or disqualifications arising from race or from contract. The vast number of laborers in mines, manufactories, commerce, as well as the laborers on the plantations, are defended against the unequal legislation of the States. Nor is the amendment confined in its application to laboring men. The mandate is universal in its application to persons of every class and every condition. There are forty millions of population who may refer to it to determine their rank in the United States, and in any particular State. There are thirty-seven governments among the States to which it directs command, and the States that may be hereafter admitted, and the persons hereafter to be born or naturalized will find here declarations of the same weighty import to them all. To the State governments is says: 'Let there be no law made or enforced to diminish one of the privileges and immunities of the people of the United States;' nor law to deprive them of their life, liberty, property, or protection without trial. To the people the declaration is: 'Take and hold this your certificate of status and of*55 capacity, the Magna Charta of your rights and liberties.' To the Congress it says: 'Take care to enforce this article by suitable laws.'

The only question then is this: 'When a State passes a law depriving a thousand people, who have acquired valuable property, and who, through its instrumentality, are engaged in an honest and necessary business, which they understand, of their right to use such their own property, and to labor in such their honest and necessary business, and gives a monopoly, embracing the whole subject, including the right to labor in such business, to seventeen other persons—whether the State has abridged any of the privileges or immunities of these thousand persons?'

Now, what are 'privileges and immunities' in the sense of the Constitution? They are undoubtedly the personal and civil rights which usage, tradition, the habits of society, written law, and the common sentiments of people have recognized as forming the basis of the institutions of the country. The first clause in the fourteenth amendment does not deal with any interstate relations, nor relations that depend in any manner upon State laws, nor is any standard among the States referred to for the ascertainment of these privileges and immunities. It assumes that there were privileges and immunities that belong to an American citizen, and the State is commanded neither to make nor to enforce any law that will abridge them.

The case of Ward v. Maryland9 bears upon the matter. That case involved the validity of a statute of Maryland which imposed a tax in the form of a license to sell the agricultural and manufactured articles of other States than Maryland by card, sample, or printed lists, or catalogue. The purpose of the tax was to prohibit sales in the mode, and to relieve the resident merchant from the competition of these itinerant or transient dealers. This court decided that the power to carry on commerce in this form was 'a privilege or immunity' of the sojourner.

*562. The act in question is equally in the face of the fourteenth amendment in that it denies to the plaintiffs the equal protection of the laws. By an act of legislative partiality it enriches seventeen persons and deprives nearly a thousand others of the same class, and as upright and competent as the seventeen, of the means by which they earn their daily bread.

3. It is equally in violation of it, since it deprives them of their property without due process of law. The right to labor, the right to one's self physically and intellectually, and to the product of one's own faculties, is past doubt property, and property of a sacred kind. Yet this property is destroyed by the act; destroyed not by due process of law, but by charter; a grant of privilege, of monopoly; which allows such rights in this matter to no one but to a favored 'seventeen.'

It will of course be sought to justify the act as an exercise of the police power; a matter confessedly, in its general scope, within the jurisdiction of the States. Without doubt, in that general scope, the subject of sanitary laws belong to the exercise of the power set up; but it does not follow there is no restraint on State power of legislation in police matters. The police power was invoked in the case of Gibbons v. Ogden.10 New York had granted to eminent citizens a monopoly of steamboat navigation in her waters as compensation for their enterprise and invention. They set up that Gibbons should not have, keep, establish, or land with a steamboat to carry passengers and freight on the navigable waters of New York. Of course the State had a great jurisdiction over its waters for all purposes of police, but none to control navigation and intercourse between the United States and foreign nations, or among the States. Suppose the grant to Fulton and Livingston had been that all persons coming to the United States, or from the States around, should, because of their services to the State, land on one of their lots and pass through their gates. This would abridge the rights secured in the fourteenth amendment.

*57The right to move with freedom, to choose his highway, and to be exempt from impositions, belongs to the citizen. He must have this power to move freely to perform his duties as a citizen.

The Passenger Cases, in 7 Howard, are replete with discussions on the police powers of the States. The arguments in that case appeal to the various titles in which the freedom of State action had been supposed to be unlimited. Immigrants, it was said, would bring pauperism, crime, idleness, increased expenditures, disorderly conduct. The acts, it was said, were in the nature of health acts. But the court said that the police power would not be invoked to justify even the small tax there disputed.

1

See infra, pp. 85, 86.

2

De la Propri et e, 36, 47.

3

History of England, vol. 1, p. 58.

4

11 Reports, 85.

5

25 Connecticut, 19.

6

45 Illinois, 90.

7

7 Paige, 261.

8

The statement of these cases being made, infra, pp. 106-109, in the dissenting opinion of Mr. Justice Field, is not here given.

9

12 Wallace, 419.

10

9 Wheaton, 203.

Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the court.

These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State.

The cases named on a preceding page,11 with others which have been brought here and dismissed by agreement, were all decided by the Supreme Court of Louisiana in favor of the Slaughter-House Company, as we shall hereafter call it for the sake of brevity, and these writs are brought to reverse those decisions.

The records were filed in this court in 1870, and were argued before it as length on a motion made by plaintiffs in error for an order in the nature of an injunction or supersedeas,*58 pending the action of the court on the merits. The opinion on that motion is reported in 10 Wallace, 273.

On account of the importance of the questions involved in these cases they were, by permission of the court, taken up out of their order on the docket and argued in January, 1872. At that hearing one of the justices was absent, and it was found, on consultation, that there was a diversity of views among those who were present. Impressed with the gravity of the questions raised in the argument, the court under these circumstances ordered that the cases be placed on the calendar and reargued before a full bench. This argument was had early in February last.

Preliminary to the consideration of those questions is a motion by the defendant to dismiss the cases, on the ground that the contest between the parties has been adjusted by an agreement made since the records came into this court, and that part of that agreement is that these writs should be dismissed. This motion was heard with the argument on the merits, and was much pressed by counsel. It is supported by affidavits and by copies of the written agreement relied on. It is sufficient to say of these that we do not find in them satisfactory evidence that the agreement is binding upon all the parties to the record who are named as plaintiffs in the several writs of error, and that there are parties now before the court, in each of the three cases, the names of which appear on a preceding page,12 who have not consented to their dismissal, and who are not bound by the action of those who have so consented. They have a right to be heard, and the motion to dismiss cannot prevail.

The records show that the plaintiffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court*59 to review the judgment of the State court on those questions is clear and is imperative.

The statute thus assailed as unconstitutional was passed March 8th, 1869, and is entitled 'An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the Crescent City Live-Stock Landing and Slaughter-House Company.'

The first section forbids the landing or slaughtering of animals whose flesh is intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughter-houses or abattoirs within those limits except by the corporation thereby created, which is also limited to certain places afterwards mentioned. Suitable penalties are enacted for violations of this prohibition.

The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers.

The third and fourth sections authorize the company to establish and erect within certain territorial limits, therein defined, one or more stock-yards, stock-landings, and slaughter-houses, and imposes upon it the duty of erecting, on or before the first day of June, 1869, one grand slaughter-house of sufficient capacity for slaughtering five hundred animals per day.

It declares that the company, after it shall have prepared all the necessary buildings, yards, and other conveniences for that purpose, shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privilege granted by the act, and that all such animals shall be landed at the stock-landings and slaughtered at the slaughter-houses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed.

Section five orders the closing up of all other stock-landings*60 and slaughter-houses after the first day of June, in the parishes of Orleans, Jefferson, and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughter-houses under a heavy penalty for each refusal. Another section fixes a limit to the charges to be made by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered, by an officer appointed by the governor of the State for that purpose.

These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us.

This statute is denounced not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens—the whole of the butchers of the city—of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families, and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city.

But a critical examination of the act hardly justifies these assertions.

It is true that it grants, for a period of twenty-five years, exclusive privileges. And whether those privileges are at the expense of the community in the sense of a curtailment of any of their fundamental rights, or even in the sense of doing them an injury, is a question open to considerations to be hereafter stated. But it is not true that it deprives the butchers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit, or furnishing the people of the city with the necessary daily supply of animal food.

The act divides itself into two main grants of privilege,—the one in reference to stock-landings and stock-yards, and*61 the other to slaughter-houses. That the landing of livestock in large droves, from steamboats on the bank of the river, and from railroad trains, should, for the safety and comfort of the people and the care of the animals, be limited to proper places, and those not numerous, it needs no argument to prove. Nor can it be injurious to the general community that while the duty of making ample preparation for this is imposed upon a few men, or a corporation, they should, to enable them to do it successfully, have the exclusive right of providing such landing-places, and receiving a fair compensation for the service.

It is, however, the slaughter-house privilege, which is mainly relied on to justify the charges of gross injustice to the public, and invasion of private right.

It is not, and cannot be successfully controverted, that it is both the right and the duty of the legislative body—the supreme power of the State or municipality—to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively it is indispensable that all persons who slaughter animals for food shall do it is those places and nowhere else.

The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit and person who wishes to do so, to slaughter in their houses; and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place and to pay a reasonable compensation for the use of the accommodations furnished him at that place.

The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the*62 duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit.

The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details.

'Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all,' says Chancellor Kent,13 'be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.' This is called the police power; and it is declared by Chief Justice Shaw14 that it is much easier to perceive and realize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise.

This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. 'It extends,' says another eminent judge,15 'to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State; . . . and persons and property are subject to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.'*63 The regulation of the place and manner of conducting the slaughtering of animals, and the business of butchering within a city, and the inspection of the animals to be killed for meat, and of the meat afterwards, are among the most necessary and frequent exercises of this power. It is not, therefore, needed that we should seek for a comprehensive definition, but rather look for the proper source of its exercise.

In Gibbons v. Ogden,16 Chief Justice Marshall, speaking of inspection laws passed by the States, says: 'They form a portion of that immense mass of legislation which controls everything within the territory of a State not surrendered to the General Government—all which can be most advantageously administered by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts. No direct general power over these objects is granted to Congress; and consequently they remain subject to State legislation.'

The exclusive authority of State legislation over this subject is strikingly illustrated in the case of the City of New York v. Miln.17 In that case the defendant was prosecuted for failing to comply with a statute of New York which required of every master of a vessel arriving from a foreign port, in that of New York City, to report the names of all his passengers, with certain particulars of their age, occupation, last place of settlement, and place of their birth. It was argued that this act was an invasion of the exclusive right of Congress to regulate commerce. And it cannot be denied that such a statute operated at least indirectly upon the commercial intercourse between the citizens of the United States and of foreign countries. But notwithstanding this it was held to be an exercise of the police power properly within the control of the State, and unaffected by the clause of the Constitution which conferred on Congress the right to regulate commerce.

*64To the same purpose are the recent cases of the The License Tax18 and United States v. De Witt.19 In the latter case an act of Congress which undertook as a part of the internal revenue laws to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inflammable at less than a prescribed temperature, was held to be void, because as a police regulation the power to make such a law belonged to the States, and did not belong to Congress.

It cannot be denied that the statute under consideration is aptly framed to remove from the more densely populated part of the city, the noxious slaughter-houses, and large and offensive collections of animals necessarily incident to the slaughtering business of a large city, and to locate them where the convenience, health, and comfort of the people require they shall be located. And it must be conceded that the means adopted by the act for this purpose are appropriate, are stringent, and effectual. But it is said that in creating a corporation for this purpose, and conferring upon it exclusive privileges—privileges which it is said constitute a monopoly—the legislature has exceeded its power. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the corporation which it created, it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate. The proposition is ably discussed and affirmed in the case of McCulloch v. The State of Maryland,20 in relation to the power of Congress to organize*65 the Bank of the United States to aid in the fiscal operations of the government.

It can readily be seen that the interested vigilance of the corporation created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock-landing and slaughtering business for the good of the city than the ordinary efforts of the officers of the law.

Unless, therefore, it can be maintained that the exclusive privilege granted by this charter to the corporation, is beyond the power of the legislature of Louisiana, there can be no just exception to the validity of the statute. And in this respect we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a consideration for the privilege is well defined, and its enforcement well guarded. The prices or charges to be made by the company are limited by the statute, and we are not advised that they are on the whole exorbitant or unjust.

The proposition is, therefore, reduced to these terms: Can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State?

The eminent and learned counsel who has twice argued the negative of this question, has displayed a research into the history of monopolies in England, and the European continent, only equalled by the eloquence with which they are denounced.

But it is to be observed, that all such references are to monopolies established by the monarch in derogation of the rights of his subjects, or arise out of transactions in which the people were unrepresented, and their interests uncared for. The great Case of Monopolies, reported by Coke, and so fully stated in the brief, was undoubtedly a contest of the commons against the monarch. The decision is based upon the ground that it was against common law, and the argument was aimed at the unlawful assumption of power by the crown; for whoever doubted the authority of Parliament to change or modify the common law? The discussion in the House of Commons cited from Macaulay clearly*66 establishes that the contest was between the crown, and the people represented in Parliament.

But we think it may be safely affirmed, that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country, have from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges—privileges denied to other citizens—privileges which come within any just definition of the word monopoly, as much as those now under consideration; and that the power to do this has never been questioned or denied. Nor can it be truthfully denied, that some of the most useful and beneficial enterprises set on foot for the general good, have been made successful by means of these exclusive rights, and could only have been conducted to success in that way.

It may, therefore, be considered as established, that the authority of the legislature of Louisiana to pass the present statute is ample, unless some restraint in the exercise of that power be found in the constitution of that State or in the amendments to the Constitution of the United States, adopted since the date of the decisions we have already cited.

If any such restraint is supposed to exist in the constitution of the State, the Supreme Court of Louisiana having necessarily passed on that question, it would not be open to review in this court.

The plaintiffs in error accepting this issue, allege that the statute is a violation of the Constitution of the United States in these several particulars:

That it creates an involuntary servitude forbidden by the thirteenth article of amendment;

That it abridges the privileges and immunities of citizens of the United States;

That it denies to the plaintiffs the equal protection of the laws; and,

That it deprives them of their property without due process of law; contrary to the provisions of the first section of the fourteenth article of amendment.

*67This court is thus called upon for the first time to give construction to these articles.

We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. We have given every opportunity for a full hearing at the bar; we have discussed it freely and compared views among ourselves; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that we have neither the inclination nor the right to go.

Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original; and the twelfth, adopted in eighteen hundred and three, was so nearly so as to have become, like all the others, historical and of another age. But within the last eight years three other articles of amendment of vast importance have been added by the voice of the people to that now venerable instrument.

The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history; for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights;*68 additional powers to the Federal government; additional restraints upon those of the States. Fortunately that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt.

The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government, and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery.

In that struggle slavery, as a legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for they proved themselves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles. Hence the thirteenth article of amendment of that instrument.

*69Its two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated.

'1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

'2. Congress shall have power to enforce this article by appropriate legislation.'

To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government—a declaration designed to establish the freedom of four millions of slaves—and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, requires an effort, to say the least of it.

That a personal servitude was meant is proved by the use of the word 'involuntary,' which can only apply to human beings. The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant. The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word slavery had been used. The case of the apprentice slave, held under a law of Maryland, liberated by Chief Justice Chase, on a writ of habeas corpus under this article, illustrates this course of observation.21 And it is all that we deem necessary to say on the application of that article to the statute of Louisiana, now under consideration.

*70The process of restoring to their proper relations with the Federal government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity.

They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced.

These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they*71 ratified that article by a formal vote of their legislative bodies.

Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage.

Hence the fifteenth amendment, which declares that 'the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.' The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.

We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms,*72 mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.

We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.

The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether*73 this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.

'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.'

The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.

*74Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.

We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.

The language is, 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.

Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

*75If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment.

The first occurrence of the words 'privileges and immunities' in our constitutional history, is to be found in the fourth of the articles of the old Confederation.

It declares 'that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.'

In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: 'The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.'

There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.

Fortunately we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823.22*76 'The inquiry,' he says, 'is, what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.'

This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland,23 while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which the fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure.

In the case of Paul v. Virginia,24 the court, in expounding this clause of the Constitution, says that 'the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter*77 States under their constitution and laws by virtue of their being citizens.'

The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.

Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States—such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the*78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges*79 and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.

But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.

One of these is well described in the case of Crandall v. Nevada.25 It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, 'to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.' And quoting from the language of Chief Justice Taney in another case, it is said 'that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;' and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations,*80 are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon a fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered.

But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration.

'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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.'

The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. This law then, has practically been the same as it now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government.

We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it*81 is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.

'Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.'

In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.

If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment.

In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate the powers of the National government from those of the State governments, and though this line has*82 never been very well defined in public opinion, such a division has continued from that day to this.

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights—the rights of person and of property—was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or of any of its parts.

*83The judgments of the Supreme Court of Louisiana in these cases are

AFFIRMED.

11

See supra, p. 36, sub-title.

12

See subtitle, supra, p. 36.—REP.

13

2 Commentaries, 340.

14

Commonwealth v. Alger, 7 Cushing, 84.

15

Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont, 149.

16

9 Wheaton, 203.

17

11 Peters, 102.

18

5 Wallace, 471.

19

9 Id. 41.

20

4 Wheaton, 316.

21

Matter of Turner, 1 Abbott United States Reports, 84.

22

4 Washington's Circuit Court, 371.

23

12 Wallace, 430.

24

8 Id. 180.

25

6 Wallace, 36.

Mr. Justice FIELD, dissenting:

I am unable to agree with the majority of the court in these cases, and will proceed to state the reasons of my dissent from their judgment.

The cases grow out of the act of the legislature of the State of Louisiana, entitled 'An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate 'The Crescent City Live-Stock Landing and Slaughter-House Company," which was approved on the eighth of March, 1869, and went into operation on the first of June following. The act creates the corporation mentioned in its title, which is composed of seventeen persons designated by name, and invests them and their successors with the powers usually conferred upon corporations in addition to their special and exclusive privileges. It first declares that it shall not be lawful, after the first day of June, 1869, to 'land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-landing, yards, slaughter-houses, or abattoirs within the city of New Orleans or the parishes of Orleans, Jefferson, and St. Bernard,' except as provided in the act; and imposes a penalty of two hundred and fifty dollars for each violation of its provisions. It then authorizes the corporation mentioned to establish and erect within the parish of St. Bernard and the corporate limits of New Orleans, below the United States barracks, on the east side of the Mississippi, or at any point below a designated railroad depot on the west side of the river, 'wharves, stables, sheds, yards, and buildings, necessary to land, stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals,' and provides that cattle and other animals, destined for sale or slaughter in the city of New Orleans or its environs, shall be landed at the landings and yards of the company, and be there*84 yarded, sheltered, and protected, if necessary; and that the company shall be entitled to certain prescribed fees for the use of its wharves, and for each animal landed, and be authorized to detain the animals until the fees are paid, and if not paid within fifteen days to take proceedings for their sale. Every person violating any of these provisions, of any of these provisions, or elsewhere, is subjected to a fine of two hundred and fifty dollars.

The act then requires the corporation to erect a grand slaughter-house of sufficient dimensions to accommodate all butchers, and in which five hundred animals may be slaughtered a day, with a sufficient number of sheds and stables for the stock received at the port of New Orleans, at the same time authorizing the company to erect other landing-places and other slaughter-houses at any points consistent with the provisions of the act.

The act then provides that when the slaughter-houses and accessory buildings have been completed and thrown open for use, public notice thereof shall be given for thirty days, and within that time 'all other stock-landings and slaughter-houses within the parishes of Orleans, Jefferson, and St. Bernard shall be closed, and it shall no longer be lawful to slaughter cattle, hogs, calves, sheep, or goats, the meat of which is determined [destined] for sale within the parishes aforesaid, under a penalty of one hundred dollars for each and every offence.'

The act then provides that the company shall receive for every animal slaughtered in its buildings certain prescribed fees, besides the head, feet, gore, and entrails of all animals except of swine.

Other provisions of the act require the inspection of the animals before they are slaughtered, and allow the construction of railways to facilitate communication with the buildings of the company and the city of New Orleans.

But it is only the special and exclusive privileges conferred by the act that this court has to consider in the cases before it. These privileges are granted for the period of twenty-five years. Their exclusive character not only follows*85 from the provisions I have cited, but it is declared in express terms in the act. In the third section the language is that the corporation 'shall have the sole and exclusive privilege of conducting and carrying on the live-stock, landing, and slaughter-house business within the limits and privileges granted by the provisions of the act.' And in the fourth section the language is, that after the first of June, 1869, the company shall have 'the exclusive privilege of having landed at their landing-places all animals intended for sale or slaughter in the parishes of Orleans and Jefferson,' and 'the exclusive privilege of having slaughtered' in its slaughter-houses all animals, the meat of which is intended for sale in these parishes.

In order to understand the real character of these special privileges, it is necessary to know the extent of country and of population which they affect. The parish of Orleans contains an area of country of 150 square miles; the parish of Jefferson, 384 square miles; and the parish of St. Bernard, 620 square miles. The three parishes together contain an area of 1154 square miles, and they have a population of between two and three hundred thousand people.

The plaintiffs in error deny the validity of the act in question, so far as it confers the special and exclusive privileges mentioned. The first case before us was brought by an association of butchers in the three parishes against the corporation, to prevent the assertion and enforcement of these privileges. The second case was instituted by the attorney-general of the State, in the name of the State, to protect the corporation in the enjoyment of these privileges, and to prevent an association of stock-dealers and butchers from acquiring a tract of land in the same district with the corporation, upon which to erect suitable buildings for receiving, keeping, and slaughtering cattle, and preparing animal food for market. The third case was commenced by the corporation itself, to restrain the defendants from carrying on a business similar to its own, in violation of its alleged exclusive privileges.

The substance of the averments of the plaintiffs in error*86 is this: That prior to the passage of the act in question they were engaged in the lawful and necessary business of procuring and bringing to the parishes of Orleans, Jefferson, and St. Bernard, animals suitable for human food, and in preparing such food for market; that in the prosecution of this business they had provided in these parishes suitable establishments for landing, sheltering, keeping, and slaughtering cattle and the sale of meat; that with their association about four hundred persons were connected, and that in the parishes named about a thousand persons were thus engaged in procuring, preparing, and selling animal food. And they complain that the business of landing, yarding, and keeping, within the parishes named, cattle intended for sale or slaughter, which was lawful for them to pursue before the first day of June, 1869, is made by that act unlawful for any one except the corporation named; and that the business of slaughtering cattle and preparing animal food for market, which it was lawful for them to pursue in these parishes before that day, is made by that act unlawful for them to pursue afterwards, except in the buildings of the company, and upon payment of certain prescribed fees, and a surrender of a valuable portion of each animal slaughtered. And they contend that the lawful business of landing, yarding, sheltering, and keeping cattle intended for sale or slaughter, which they in common with every individual in the community of the three parishes had a right to follow, cannot be thus taken from them and given over for a period of twenty-five years to the sole and exclusive enjoyment of a corporation of seventeen persons or of anybody else. And they also contend that the lawful and necessary business of slaughtering cattle and preparing animal food for market, which they and all other individuals had a right to follow, cannot be thus restricted within this territory of 1154 square miles to the buildings of this corporation, or be subjected to tribute for the emolument of that body.

No one will deny the abstract justice which lies in the position of the plaintiffs in error; and I shall endeavor to*87 show that the position has some support in the fundamental law of the country.

It is contended in justification for the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and when these are not in conflict with any constitutional prohibitions, or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment.

In the law in question there are only two provisions which can properly be called police regulations—the one which requires the landing and slaughtering of animals below the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When these requirements are complied with, the sanitary purposes of the act are accomplished. In all other particulars the act is a mere grant to a corporation created by it of special and exclusive privileges by which the health of the city is in no way promoted. It is plain that if the corporation can, without endangering the health of the public, carry on the business of landing, keeping, and slaughtering cattle within a district below the city embracing an area of over a thousand square miles, it would not endanger the public health if other persons were also permitted to carry on the same business within the same district under similar conditions as to the inspection of the animals. The health of the city might require the removal from its limits and suburbs of all buildings for keeping and slaughtering cattle, but no such*88 object could possibly justify legislation removing such buildings from a large part of the State for the benefit of a single corporation. The pretence of sanitary regulations for the grant of the exclusive privileges is a shallow one, which merits only this passing notice.

It is also sought to justify the act in question on the same principle that exclusive grants for ferries, bridges, and turnpikes are sanctioned. But it can find no support there. Those grants are of franchises of a public character appertaining to the government. Their use usually requires the exercise of the sovereign right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges, and ferries for the convenience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroaching upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual.

Nor is there any analogy between this act of Louisiana and the legislation which confers upon the inventor of a new and useful improvement an exclusive right to make and sell to others his invention. The government in this way only secures to the inventor the temporary enjoyment of that which, without him, would not have existed. It thus only recognizes in the inventor a temporary property in the product of his own brain.

The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively*89 for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions.

If exclusive privileges of this character can be granted to a corporation of seventeen persons, they may, in the discretion of the legislature, be equally granted to single individual. If they may be granted for twenty-five years they may be equally granted for a century, and in perpetuity. If they may be granted for the landing and keeping of animals intended for sale or slaughter they may be equally granted for the landing and storing of grain and other products of the earth, or for any article of commerce. If they may be granted for structures in which animal food is prepared for market they may be equally granted for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld.

The question presented is, therefore, one of the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it.

The counsel for the plaintiffs in error have contended, with great force, that the act in question is also inhibited by the thirteenth amendment.

That amendment prohibits slavery and involuntary servitude, except as a punishment for crime, but I have not supposed it was susceptible of a construction which would cover the enactment in question. I have been so accustomed to regard it as intended to meet that form of slavery which had*90 previously prevailed in this country, and to which the recent civil war owed its existence, that I was not prepared, nor am I yet, to give to it the extent and force ascribed by counsel. Still it is evidence that the language of the amendment is not used in a restrictive sense. It is not confined to African slavery alone. It is general and universal in its application. Slavery of white men as well as of black men is prohibited, and not merely slavery in the strict sense of the term, but involuntary servitude in every form.

The words 'involuntary servitude' have not been the subject of any judicial or legislative exposition, that I am aware of, in this country, except that which is found in the Civil Rights Act, which will be hereafter noticed. It is, however, clear that they include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make every one born in this country a freeman, and as such to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another,*91 and would equally constitute an element of servitude. The counsel of the plaintiffs in error therefore contend that 'wherever a law of a State, or a law of the United States, makes a discrimination between classes of persons, which deprives the one class of their freedom or their property, or which makes a caste of them to subserve the power, pride, avarice, vanity, or vengeance of others,' there involuntary servitude exists within the meaning of the thirteenth amendment.

It is not necessary, in my judgment, for the disposition of the present case in favor of the plaintiffs in error, to accept as entirely correct this conclusion of counsel. It, however, finds support in the act of Congress known as the Civil Rights Act, which was framed and adopted upon a construction of the thirteenth amendment, giving to its language a similar breadth. That amendment was ratified on the eighteenth of December, 1865,26 and in April of the following year the Civil Rights Act was passed.27 Its first section declares that all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are 'citizens of the United States,' and that 'such citizens, of every race and color, without regard to any previous condition of slavery, or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall have the same right in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizens.'

This legislation was supported upon the theory that citizens of the United States as such were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others, was, to the extent of the denial, subjecting him to an involuntary*92 servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom. After referring to several statutes passed in some of the Southern States, discriminating between the freedmen and white citizens, and after citing the definition of civil liberty given by Blackstone, the Senator said: 'I take it that any statute which is not equal to all, and which deprives any citizen of civil rights, which are secured to other citizens, is an unjust encroachment upon his liberty; and it is in fact a badge of servitude which by the Constitution is prohibited.'28

By the act of Louisiana, within the three parishes named, a territory exceeding one thousand one hundred square miles, and embracing over two hundred thousand people, every man who pursues the business of preparing animal food for market must take his animals to the buildings of the favored company, and must perform his work in them, and for the use of the buildings must pay a prescribed tribute to the company, and leave with it a valuable portion of each animal slaughtered. Every man in these parishes who has a horse or other animal for sale, must carry him to the yards and stables of this company, and for their use pay a like tribute. He is not allowed to do his work in his own buildings, or to take his animals to his own stables or keep them in his own yards, even though they should be erected in the same district as the buildings, stables, and yards of the company, and that district embraces over eleven hundred square miles. The prohibitions imposed by this act upon butchers and dealers in cattle in these parishes, and the special privileges conferred upon the favored corporation, are similar in principle and as odious in character as the restrictions imposed in the last century upon the peasantry in some parts of France, where, as says a French*93 writer, the peasant was prohibited 'to hunt on his own lands, to fish in his own waters, to grind at his own mill, to cook at his own oven, to dry his clothes on his own machines, to whet his instruments at his own grindstone, to make his own wine, his oil, and his cider at his own press, . . . or to sell his commodities at the public market.' The exclusive right to all these privileges was vested in the lords of the vicinage. 'The history of the most execrable tyranny of ancient times,' says the same writer, 'offers nothing like this. This category of oppressions cannot be applied to a free man, or to the peasant, except in violation of his rights.'

But if the exclusive privileges conferred upon the Louisiana corporation can be sustained, it is not perceived why exclusive privileges for the construction and keeping of ovens, machines, grindstones, wine-presses, and for all the numerous trades and pursuits for the prosecution of which buildings are required, may not be equally bestowed upon other corporations or private individuals, and for periods of indefinite duration.

It is not necessary, however, as I have said, to rest my objections to the act in question upon the terms and meaning of the thirteenth amendment. The provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration. The amendment was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Rights Act, and to place the common rights of American citizens under the protection of the National government. It first declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' It then declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due*94 process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

The first clause of this amendment determines who are citizens of the United States, and how their citizenship is created. Before its enactment there was much diversity of opinion among jurists and statesmen whether there was any such citizenship independent of that of the State, and, if any existed, as to the manner in which it originated. With a great number the opinion prevailed that there was no such citizenship independent of the citizenship of the State. Such was the opinion of Mr. Calhoun and the class represented by him. In his celebrated speech in the Senate upon the Force Bill, in 1833, referring to the reliance expressed by a senator upon the fact that we are citizens of the United States, he said: 'If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.'29

In the Dred Scott case this subject of citizenship of the United States was fully and elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been generally accepted by the profession of the country as the one containing the soundest views of constitutional law. And he held that, under the Constitution, citizenship of the United States in reference to natives was dependent upon citizenship in the several States, under their constitutions and laws.

*95The Chief Justice, in that case, and a majority of the court with him, held that the words 'people of the United States' and 'citizens' were synonymous terms; that the people of the respective States were the parties to the Constitution; that these people consisted of the free inhabitants of those States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges of a citizen under the Constitution, and that therefore the descendants of persons brought to this country and sold as slaves were not, and could not be citizens within the meaning of the Constitution.

The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. They are thus affected in a State by the wisdom of its laws, the ability of its officers, the officiency of its magistrates, the education and morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way can they be affected by the action of the State, or by the residence of the citizen therein. They do not derive*96 their existence from its legislation, and cannot be destroyed by its power.

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right 'to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.' That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation*97 of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.30

The terms, privileges and immunities, are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,' and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell,31 Mr. Justice Washington said he had 'no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;' and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be 'all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.' This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. In the discussions*98 in Congress upon the passage of the Civil Rights Act repeated reference was made to this language of Mr. Justice Washington. It was cited by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declared by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the great fundamental rights set forth in the act; and that they were set forth 'as appertaining to every freeman.'

The privileges and immunities designated in the second section of the fourth article of the Constitution are, then, according to the decision cited, those which of right belong to the citizens of all free governments, and they can be enjoyed under that clause by the citizens of each State in the several States upon the same terms and conditions as they are enjoyed by the citizens of the latter States. No discrimination can be made by one State against the citizens of other States in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citizens. It is a clause which insures equality in the enjoyment of these rights between citizens of the several States whilst in the same State.

Nor is there anything in the opinion in the case of Paul v. Virginia,<32 which at all militates against these views, as is supposed by the majority of the court. The act of Virginia, of 1866, which was under consideration in that case, provided that no insurance company, not incorporated under the laws of the State, should carry on its business within the State without previously obtaining a license for that purpose; and that it should not receive such license until it had deposited with the treasurer of the State bonds of a specified character, to an amount varying from thirty to fifty thousand dollars. No such deposit was required of insurance companies incorporated by the State, for carrying on*99 their business within the State; and in the case cited the validity of the discriminating provisions of the statute of Virginia between her own corporations and the corporations of other States, was assailed. It was contended that the statute in this particular was in conflict with that clause of the Constitution which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' But the court answered, that corporations were not citizens within the meaning of this clause; that the term citizens as there used applied only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the legislature and possessing only the attributes which the legislature had prescribed; that though it had been held that where contracts or rights of property were to be enforced by or against a corporation, the courts of the United States would, for the purpose of maintaining jurisdiction, consider the corporation as representing citizens of the State, under the laws of which it was created, and to this extent would treat a corporation was a citizen within the provision of the Constitution extending the judicial power of the United States to controversies between citizens of different States, it had never been held in any case which had come under its observation, either in the State or Federal courts, that a corporation was a citizen within the meaning of the clause in question, entitling the citizens of each State to the privileges and immunities of citizens in the several States. And the court observed, that the privileges and immunities secured by that provision were those privileges and immunities which were common to the citizens in the latter States, under their constitution and laws, by virtue of their being citizens; that special privileges enjoyed by citizens in their own States were not secured in other States by the provision; that it was not intended by it to give to the laws of one State any operation in other States; that they could have no such operation except by the permission, expressed or implied, of those States; and that the special privileges which they conferred must, therefore, be enjoyed at home unless the assent*100 of other States to their enjoyment therein were given. And so the court held, that a corporation, being a grant of special privileges to the corporators, had no legal existence beyond the limits of the sovereignty where created, and that the recognition of its existence by other States, and the enforcement of its contracts made therein, depended purely upon the assent of those States, which could be granted upon such terms and conditions as those States might think proper to impose.

The whole purport of the decision was, that citizens of one State do not carry with them into other States any special privileges or immunities, conferred by the laws of their own States, of a corporate or other character. That decision has no pertinency to the questions involved in this case. The common privileges and immunities which of right belong to all citizens, stand on a very different footing. These the citizens of each State do carry with them into other States and are secured by the clause in question, in their enjoyment upon terms of equality with citizens of the latter States. This equality in one particular was enforced by this court in the recent case of Ward v. The State of Maryland, reported in the 12th of Wallace. A statute of that State required the payment of a larger sum from a non-resident trader for a license to enable him to sell his merchandise in the State, than it did of a resident trader, and the court held, that the statute in thus discriminating against the non-resident trader contravened the clause securing to the citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which was an essential incident to his ownership, possessed by the non-resident, was subjected by the statute of Maryland to a greater burden than was imposed upon a like privilege of her own citizens. The privileges of the non-resident were in this particular abridged by that legislation.

What the clause in question did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for*101 the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If under the fourth article of the Constitution equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment the same equality is secured between citizens of the United States.

It will not be pretended that under the fourth article of the Constitution any State could create a monopoly in any known trade or manufacture in favor of her own citizens, or any portion of them, which would exclude an equal participation in the trade or manufacture monopolized by citizens of other States. She could not confer, for example, upon any of her citizens the sole right to manufacture shoes, or boots, or silk, or the sole right to sell those articles in the State so as to exclude non-resident citizens from engaging in a similar manufacture or sale. The non-resident citizens could claim equality of privilege under the provisions of the fourth article with the citizens of the State exercising the monopoly as well as with others, and thus, as respects them, the monopoly would cease. If this were not so it would be in the power of the State to exclude at any time the citizens of other States from participation in particular branches of commerce or trade, and extend the exclusion from time to time so as effectually to prevent any traffic with them.

Now, what the clause in question does for the protection of citizens of one State against the creation of monopolies in favor of citizens of other States, the fourteenth amendment does for the protection of every citizen of the United States against the creation of any monopoly whatever. The privileges and immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State. The fourteenth amendment places them under the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness, and were*102 held void at common law in the great Case of Monopolies, decided during the reign of Queen Elizabeth.

A monopoly is defined 'to be an institution or allowance from the sovereign power of the State by grant, commission, or otherwise, to any person or corporation, for the sole buying, selling, making, working, or using of anything, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.' All such grants relating to any known trade or manufacture have been held by all the judges of England, whenever they have come up for consideration, to be void at common law as destroying the freedom of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it into the power of the grantees to enhance the price of commodities. The definition embraces, it will be observed, not merely the sole privilege of buying and selling particular articles, or of engaging in their manufacture, but also the sole privilege of using anything by which others may be restrained of the freedom or liberty they previously had in any lawful trade, or hindered in such trade. It thus covers in every particular the possession and use of suitable yards, stables, and buildings for keeping and protecting cattle and other animals, and for their slaughter. Such establishments are essential to the free and successful prosecution by any butcher of the lawful trade of preparing animal food for market. The exclusive privilege of supplying such yards, buildings, and other conveniences for the prosecution of this business in a large district of country, granted by the act of Louisiana to seventeen persons, is as much a monopoly as though the act had granted to the company the exclusive privilege of buying and selling the animals themselves. It equally restrains the butchers in the freedom and liberty they previously had, and hinders them in their lawful trade.

The reasons given for the judgment in the Case of Monopolies apply with equal force to the case at bar. In that case a patent had been granted to the plaintiff giving him the sole*103 right to import playing-cards, and the entire traffic in them, and the sole right to make such cards within the realm. The defendant, in disregard of this patent, made and sold some gross of such cards and imported others, and was accordingly sued for infringing upon the exclusive privileges of the plaintiff. As to a portion of the cards made and sold within the realm, he pleaded that he was a haberdasher in London and a free citizen of that city, and as such had a right to make and sell them. The court held the plea good and the grant void, as against the common law and divers acts of Parliament. 'All trades,' said the court, 'as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance, to serve the queen when occasion shall require, are profitable for the commonwealth, and therefore the grant to the plaintiff to have the sole making of them is against the common law and the benefit and liberty of the subject.'33 The case of Davenant and Hurdis was cited in support of this position. In that case a company of merchant tailors in London, having power by charter to make ordinances for the better rule and government of the company, so that they were consonant to law and reason, made an ordinance that any brother of the society who should have any cloth dressed by a cloth-worker, not being a brother of the society, should put one-half of his cloth to some brother of the same society who exercised the art of a cloth-worker, upon pain of forfeiting ten shillings, 'and it was adjudged that the ordinance, although it had the countenance of a charter, was against the common law, because it was against the liberty of the subject; for every subject, by the law, has freedom and liberty to put his cloth to be dressed by what cloth-worker he pleases, and cannot be restrained to certain persons, for that in effect would be a monopoly, and, therefore, such ordinance, by color of a charter or any grant by charter to such effect, would be void.'*104 Although the court, in its opinion, refers to the increase in prices and deterioration in quality of commodities which necessarily result from the grant of monopolies, the main ground of the decision was their interference with the liberty of the subject to pursue for his maintenance and that of his family any lawful trade or employment. This liberty is assumed to be the natural right of every Englishman.

The struggle of the English people against monopolies forms one of the most interesting and instructive chapters in their history. It finally ended in the passage of the statute of 21st James I, by which it was declared 'that all monopolies and all commissions, grants, licenses, charters, and letters-patent, to any person or persons, bodies politic or corporate, whatsoever, of or for the sole buying, selling, making, working, or using of anything' within the realm or the dominion of Wales were altogether contrary to the laws of the realm and utterly void, with the exception of patents for new inventions for a limited period, and for printing, then supposed to belong to the prerogative of the king, and for the preparation and manufacture of certain articles and ordnance intended for the prosecution of war.

The common law of England, as is thus seen, condemned all monopolies in any known trade or manufacture, and declared void all grants of special privileges whereby others could be deprived of any liberty which they previously had, or be hindered in their lawful trade. The statute of James I, to which I have referred, only embodied the law as it had been previously declared by the courts of England, although frequently disregarded by the sovereigns of that country.

The common law of England is the basis of the jurisprudence of the United States. It was brought to this country by the colonists, together with the English statutes, and was established here so far as it was applicable to their condition. That law and the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their circumstances, were claimed by the Congress of the United Colonies in 1774 as a part of their 'indubitable rights and liberties.'34*105 Of the statutes, the benefits of which was thus claimed, the statute of James I against monopolies was one of the most important. And when the Colonies separated from the mother country no privilege was more fully recognized or more completely incorporated into the fundamental law of the country than that every free subject in the British empire was entitled to pursue his happiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others. The immortal document which proclaimed the independence of the country declared as self-evident truths that the Creator had endowed all men 'with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted among men.'

If it be said that the civil law and not the common law is the basis of the jurisprudence of Louisiana, I answer that the decree of Louis XVI, in 1776, abolished all monopolies of trades and all special privileges of corporations, guilds, and trading companies, and authorized every person to exercise, without restraint, his art, trade, or profession, and such has been the law of France and of her colonies ever since, and that law prevailed in Louisiana at the time of her cession to the United States. Since then, notwithstanding the existence in that State of the civil law as the basis of her jurisprudence, freedom of pursuit has been always recognized as the common right of her citizens. But were this otherwise, the fourteenth amendment secures the like protection to all citizens in that State against any abridgment of their common rights, as in other States. That amendment was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes. If the trader in London could plead that he was a free citizen of that city against the enforcement to his injury of monopolies, surely under the fourteenth amendment every*106 citizen of the United States should be able to plead his citizenship of the republic as a protection against any similar invasion of his privileges and immunities.

So fundamental has this privilege of every citizen to be free from disparaging and unequal enactments, in the pursuit of the ordinary avocations of life, been regarded, that few instances have arisen where the principle has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exception of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactment interfering with the privilege of the citizen has been pronounced illegal and void. When a case under the same law, under which the present cases have arisen, came before the Circuit Court of the United States in the District of Louisiana, there was no hesitation on the part of the court in declaring the law, in its exclusive features, to be an invasion of one of the fundamental privileges of the citizen.35 The presiding justice, in delivering the opinion of the court, observed that it might be difficult to enumerate or define what were the essential privileges of a citizen of the United States, which a State could not by its laws invade, but that so far as the question under consideration was concerned, it might be safely said that 'it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, without unreasonable regulation or molestation, and without being restricted by any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free governments.' And again: 'There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.'

In the City of Chicago v. Rumpff,36 which was before the Supreme Court of Illinois, we have a case similar in all its*107 features to the one at bar. That city being authorized by its charter to regulate and license the slaughtering of animals within its corporate limits, the common council passed what was termed an ordinance in reference thereto, whereby a particular building was designated for the slaughtering of all animals intended for sale or consumption in the city, the owners of which were granted the exclusive right for a specified period to have all such animals slaughtered at their establishment, they to be paid a specific sum for the privilege of slaughtering there by all persons exercising it. The validity of this action of the corporate authorities was assailed on the ground of the grant of exclusive privileges, and the court said: 'The charter authorizes the city authorities to license or regulate such establishments. Where that body has made the necessary regulations, required for the health or comfort of the inhabitants, all persons inclined to pursue such an occupation should have an opportunity of conforming to such regulations, otherwise the ordinance would be unreasonable and tend to oppression. Or, if they should regard it for the interest of the city that such establishments should be licensed, the ordinance should be so framed that all persons desiring it might obtain licenses by conforming to the prescribed terms and regulations for the government of such business. We regard it neither as a regulation nor a license of the business to confine it to one building or to give it to one individual. Such an action is oppressive, and creates a monopoly that never could have been contemplated by the General Assembly. It impairs the rights of all other persons, and cuts them off from a share in not only a legal, but a necessary business. Whether we consider this as an ordinance or a contract, it is equally unauthorized, as being opposed to the rules governing the adoption of municipal by-laws. The principle of equality of rights to the corporators is violated by this contract. If the common council may require all of the animals for the consumption of the city to be slaughtered in a single building, or on a particular lot, and the owner be paid a specific sum for the privilege, what would prevent the making a*108 similar contract with some other person that all of the vegetables, or fruits, the flour, the groceries, the dry goods, or other commodities should be sold on his lot and he receive a compensation for the privilege? We can see no difference in principle.'

It is true that the court in this opinion was speaking of a municipal ordinance and not of an act of the legislature of a State. But, as it is justly observed by counsel, a legislative body is no more entitled to destroy the equality of rights of citizens, nor to fetter the industry of a city, than a municipal government. These rights are protected from invasion by the fundamental law.

In the case of the Norwich Gaslight Company v. The Norwich City Gas Company,37 which was before the Supreme Court of Connecticut, it appeared that the common council of the city of Norwich had passed a resolution purporting to grant to one Treadway, his heirs and assigns, for the period of fifteen years, the right to lay gas-pipes in the streets of that city, declaring that no other person or corporation should, by the consent of the common council, lay gas-pipes in the streets during that time. The plaintiffs having purchased of Treadway, undertook to assert an exclusive right to use the streets for their purposes, as against another company which was using the streets for the same purposes. And the court said: 'As, then, no consideration whatever, either of a public or private character, was reserved for the grant; and as the business of manufacturing and selling gas is an ordinary business, like the manufacture of leather, or any other article of trade in respect to which the government has no exclusive prerogative, we think that so far as the restriction of other persons than the plaintiffs from using the streets for the purpose of distributing gas by means of pipes, can fairly be viewed as intended to operate as a restriction upon its free manufacture and sale, it comes directly within the definition and description of a monopoly; and although we have no direct constitutional provision against a monopoly,*109 yet the whole theory of a free government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of Rights, the first section of which declares 'that no man or set of men are entitled to exclusive public emoluments or privileges from the community,' to render them void.'

In the Mayor of the City of Hudson v. Thorne,38 an application was made to the chancellor of New York to dissolve an injunction restraining the defendants from erecting a building in the city of Hudson upon a vacant lot owned by them, intended to be used as a hay-press. The common council of the city had passed an ordinance directing that no person should erect, or construct, or cause to be erected or constructed, any wooden or frame barn, stable, or hay-press of certain dimensions, within certain specified limits in the city, without its permission. It appeared, however, that there were such buildings already in existence, not only in compact parts of the city, but also within the prohibited limits, the occupation of which for the storing and pressing of hay the common council did not intend to restrain. And the chancellor said: 'If the manufacture of pressed hay within the compact parts of the city is dangerous in causing or promoting fires, the common council have the power expressly given by their charter to prevent the carrying on of such manufacture; but as all by-laws must be reasonable, the common council cannot make a by-law which shall permit one person to carry on the dangerous business and prohibit another who has an equal right from pursuing the same business.'

In all these cases there is a recognition of the equality of right among citizens in the pursuit of the ordinary avocations of life, and a declaration that all grants of exclusive privileges, in contravention of this equality, are against common right, and void.

This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life,*110 throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest, and unless adhered to in the legislation of the country our government will be a republic only in name. The fourteenth amendment, in my judgment, makes it essential to the validity of the legislation of every State that this equality of right should be respected. How widely this equality has been departed from, how entirely rejected and trampled upon by the act of Louisiana, I have already shown. And it is to me a matter of profound regret that its validity is recognized by a majority of this court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated.39 As stated by the Supreme Court of Connecticut, in*111 the case cited, grants of exclusive privileges, such as is made by the act in question, are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void. That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.40

I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to state that they concur with me in this dissenting opinion.

26

The proclamation of its ratification was made on that day (13 Stat. at Large, 774).

27

14 Id. 27.

28

Congressional Globe, 1st Session, 39th Congress, part 1, page 474.

29

Calhoun's Works, vol. 2, p. 242.

30

May 31st, 1870; 16 Stat. at Large, 144.

31

4 Washington's Circuit Court, 380.

32

8 Wallace, 168.

33

Coke's Reports, part 11, page 86.

34

Journals of Congress, vol. i, pp. 28-30.

35

Live-Stock, &c., Association v. The Crescent City, &c., Company (1 Abbott's United States Reports, 398).

36

45 Illinois, 90.

37

25 Connecticut, 19.

38

7 Paige, 261.

39

'The property which every man has in his own labor,' says Adam Smith, 'as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' (Smith's Wealth of Nations, b. 1, ch. 10, part 2.)

In the edict of Louis XVI, in 1776, giving freedom to trades and professions, prepared by his minister, Turgot, he recites the contributions that had been made by the guilds and trade companies, and says: 'It was the allurement of these fiscal advantages undoubtedly that prolonged the illusion and concealed the immense injury they did to industry and their infraction of natural right. This illusion had extended so far that some persons asserted that the right to work was a royal privilege which the king might sell, and that his subjects were bound to purchase from him. We hasten to correct this error and to repel the conclusion. God in giving to man wants and desires rendering labor necessary for their satisfaction, conferred the right to labor upon all men, and this property is the first, most sacred, and imprescriptible of all.' . . . He, therefore, regards it 'as the first duty of his justice, and the worthiest act of benevolence, to free his subjects from any restriction upon this inalienable right of humanity.'

40

'Civil liberty, the great end of all human society and government, is that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws.' (1 Sharswood's Blackstone, 127, note 8.)

Mr. Justice BRADLEY, also dissenting:

I concur in the opinion which has just been read by Mr. Justice Field; but desire to add a few observations for the purpose of more fully illustrating my views on the important question decided in these cases, and the special grounds on which they rest.

The fourteenth amendment to the Constitution of the United States, section 1, declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.

The legislature of Louisiana, under pretence of making a police regulation for the promotion of the public health, passed an act conferring upon a corporation, created by the act, the exclusive right, for twenty-five years, to have and maintain slaughter-houses, landings for cattle, and yards for*112 confining cattle intended for slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a territory containing nearly twelve hundred square miles, including the city of New Orleans; and prohibiting all other persons from building, keeping, or having slaughter-houses, landings for cattle, and yards for confining cattle intended for slaughter within the said limits; and requiring that all cattle and other animals to be slaughtered for food in that district should be brought to the slaughter-houses and works of the favored company to be slaughtered, and a payment of a fee to the company for such act.

It is contended that this prohibition abridges the privileges and immunities of citizens of the United States, especially of the plaintiffs in error, who were particularly affected thereby; and whether it does so or not is the simple question in this case. And the solution of this question depends upon the solution of two other questions, to wit:

First. Is it one of the rights and privileges of a citizen of the United States to pursue such civil employment as he may choose to adopt, subject to such reasonable regulations as may be prescribed by law?

Secondly. Is a monopoly, or exclusive right, given to one person to the exclusion of all others, to keep slaughter-houses, in a district of nearly twelve hundred square miles, for the supply of meat for a large city, a reasonable regulation of that employment which the legislature has a right to impose?

The first of these questions is one of vast importance, and lies at the very foundations of our government. The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country; and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein,*113 and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. And when the spirit of lawlessness, mob violence, and sectional hate can be so completely repressed as to give full practical effect to this right, we shall be a happier nation, and a more prosperous one than we now are. Citizenship of the United States ought to be, and, according to the Constitution, is, a surt and undoubted title to equal rights in any and every States in this Union, subject to such regulations as the legislature may rightfully prescribe. If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States.

Every citizen, then, being primarily a citizen of the United States, and, secondarily, a citizen of the State where he resides, what, in general, are the privileges and immunites of a citizen of the United States? Is the right, liberty, or privilege of choosing any lawful employment one of them?

If a State legislature should pass a law prohibiting the inhabitants of a particular township, county, or city, from tanning leather or making shoes, would such a law violate any privileges or immunities of those inhabitants as citizens of the United States, or only their privileges and immunities as citizens of that particular State? Or if a State legislature should pass a law of caste, making all trades and professions, or certain enumerated trades and professions, hereditary, so that no one could follow any such trades or professions except that which was pursued by his father, would such a law violate the privileges and immunities of the people of that State as citizens of the United States, or only as citizens of the State? Would they have no redress but to appeal to the courts of that particular State?

This seems to me to be the essential question before us for consideration. And, in my judgment, the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all lawful regulations) is one of*114 his most valuable rights, and one which the legislature of a State cannot invade, whether restrained by its own constitution or not.

The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves. I speak now of the rights of citizens of any free government. Granting for the present that the citizens of one government cannot claim the privileges of citizens in another government; that prior to the union of our North American States the citizens of one State could not claim the privileges of citizens in another State; or, that after the union was formed the citizens of the United States, as such, could not claim the privileges of citizens in any particular State; yet the citizens of each of the States and the citizens of the United States would be entitled to certain privileges and immunities as citizens, at the hands of their own government—privileges and immunities which their own governments respectively would be bound to respect and maintain. In this free country, the people of which inherited certain traditionary rights and privileges from their ancestors, citizenship means something. It has certain privileges and immunities attached to it which the government, whether restricted by express or implied limitations, cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And these privileges and immunities attach as well to citizenship of the United States as to citizenship of the States.

The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation's history. One of these fundamental rights was expressed in these words, found in Magna Charta: 'No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn*115 him but by lawful judgment of his peers or by the law of the land.' English constitutional writers expound this article as rendering life, liberty, and property inviolable, except by due process of law. This is the very right which the plaintiffs in error claim in this case. Another of these rights was that of habeas corpus, or the right of having any invasion of personal liberty judicially examined into, at once, by a competent judicial magistrate. Blackstone classifies these fundamental rights under three heads, as the absolute rights of individuals, to wit: the right of personal security, the right of personal liberty, and the right of private property. And of the last he says: 'The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land.'

The privileges and immunities of Englishmen were established and secured by long usage and by various acts of Parliament. But it may be said that the Parliament of England has unlimited authority, and might repeal the laws which have from time to time been enacted. Theoretically this is so, but practically it is not. England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour. A violation of one of the fundamental principles of that constitution in the Colonies, namely, the principle that recognizes the property of the people as their own, and which, therefore, regards all taxes for the support of government as gifts of the people through their representatives, and regards taxation without representation as subversive of free government, was the origin of our own revolution.

This, it is true, was the violation of a political right; but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country; and the Declaration of Independence, which*116 was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition: 'That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.' Here again we have the great threefold division of the rights of freemen, asserted as the rights of man. Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.

For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right he cannot be a freeman. This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property and right. Liberty and property are not protected where these rights are arbitrarily assailed.

I think sufficient has been said to show that citizenship is not an empty name, but that, in this country at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to State citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people.

On this point the often-quoted language of Mr. Justice Washington, in Corfield v. Coryell,41 is very instructive. Being*117 called upon to expound that clause in the fourth article of the Constitution, which declares that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,' he says: 'The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental privileges are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or to reside in, any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental.'

It is pertinent to observe that both the clause of the Constitution referred to, and Justice Washington in his comment on it, speak of the privileges and immunities of citizens in a State; not of citizens of a State. It is the privileges and immunities of citizens, that is, of citizens as such, that are to be accorded to citizens of other States when they are found in any State; or, as Justice Washington says, 'privileges and immunities which are, in their nature, fundamental;*118 which belong, of right, to the citizens of all free governments.'

It is true the courts have usually regarded the clause referred to as securing only an equality of privileges with the citizens of the State in which the parties are found. Equality before the law is undoubtedly one of the privileges and immunities of every citizen. I am not aware that any case has arisen in which it became necessary to vindicate any other fundamental privilege of citizenship; although rights have been claimed which were not deemed fundamental, and have been rejected as not within the protection of this clause. Be this, however, as it may, the language of the clause is as I have stated it, and seems fairly susceptible of a broader interpretation than that which makes it a guarantee of mere equality of privileges with other citizens.

But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities*119 of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.

But even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and enjoying property; the privilege of engaging in any lawful employment for a livelihood; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not. Inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated; and among these none is more essential and fundamental than the right to follow such profession or employment as each one may choose, subject only to uniform regulations equally applicable to all.

II. The next question to be determined in this case is: Is a monopoly or exclusive right, given to one person, or corporation, to the exclusion of all others, to keep slaughter-houses in a district of nearly twelve hundred square miles, for the supply of meat for a great city, a reasonable regulation of that employment which the legislature has a right to impose?

The keeping of a slaughter-house is part of, and incidental to, the trade of a butcher—one of the ordinary occupations of human life. To compel a butcher, or rather all the butchers of a large city and an extensive district, to slaughter their cattle in another person's slaughter-house and pay him a toll therefor, is such a restriction upon the trade as materially to interfere with its prosecution. It is onerous, unreasonable, arbitrary, and unjust. It has none of the*120 qualities of a police regulation. If it were really a police regulation, it would undoubtedly be within the power of the legislature. That portion of the act which requires all slaughter-houses to be located below the city, and to be subject to inspection, &c., is clearly a police regulation. That portion which allows no one but the favored company to build, own, or have slaughter-houses is not a police regulation, and has not the faintest semblance of one. It is one of those arbitrary and unjust laws made in the interest of a few scheming individuals, by which some of the Southern States have, within the past few years, been so deplorably oppressed and impoverished. It seems to me strange that it can be viewed in any other light.

The granting of monopolies, or exclusive privileges to individuals or corporations, is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was so felt by the English nation as far back as the reigns of Elizabeth and James. A fierce struggle for the suppression of such monopolies, and for abolishing the prerogative of creating them, was made and was successful. The statute of 21st James, abolishing monopolies, was one of those constitutional landmarks of English liberty which the English nation so highly prize and so jealously preserve. It was a part of that inheritance which our fathers brought with them. This statute abolished all monopolies except grants for a term of years to the inventors of new manufactures. This exception is the groundwork of patents for new inventions and copyrights of books. These have always been sustained as beneficial to the state. But all other monopolies were abolished, as tending to the impoverishment of the people and to interference with their free pursuits. And ever since that struggle no English-speaking people have ever endured such an odious badge of tyranny.

It has been suggested that this was a mere legislative act, and that the British Parliament, as well as our own legislatures, have frequently disregarded it by granting exclusive privileges for erecting ferries, railroads, markets, and other establishments of a public kind. It requires but a slight*121 acquaintance with legal history to know that grants of this kind of franchises are totally different from the monopolies of commodities or of ordinary callings or pursuits. These public franchises can only be exercised under authority from the government, and the government may grant them on such conditions as it sees fit. But even these exclusive privileges are becoming more and more odious, and are getting to be more and more regarded as wrong in principle, and as inimical to the just rights and greatest good of the people. But to cite them as proof of the power of legislatures to create mere monopolies, such as no free and enlightened community any longer endures, appears to me, to say the least, very strange and illogical.

Lastly: Can the Federal courts administer relief to citizens of the United States whose privileges and immunities have been abridged by a State? Of this I entertain no doubt. Prior to the fourteenth amendment this could not be done, except in a few instances, for the want of the requisite authority.

As the great mass of citizens of the United States were also citizens of individual States, many of their general privileges and immunities would be the same in the one capacity as in the other. Having this double citizenship, and the great body of municipal laws intended for the protection of person and property being the laws of the State, and no provision being made, and no machinery provided by the Constitution, except in a few specified cases, for any interference by the General Government between a State and its citizens, the protection of the citizen in the enjoyment of his fundamental privileges and immunities (except where a citizen of one State went into another State) was largely left to State laws and State courts, where they will still continue to be left unless actually invaded by the unconstitutional acts or delinquency of the State governments themselves.

Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens of the United States, except*122 in a few specified cases, that cannot be said now, since the adoption of the fourteenth amendment. In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen.

The first section of this amendment, after declaring that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the State wherein they reside, proceeds to declare further, that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws;' and that Congress shall have power to enforce by appropriate legislation the provisions of this article.

Now, here is a clear prohibition on the States against making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.

If my views are correct with regard to what are the privileges and immunities of citizens, it follows conclusively that any law which establishes a sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens.

The amendment also prohibits any State from depriving any person (citizen or otherwise) of life, liberty, or property, without due process of law.

In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section.

The constitutional question is distinctly raised in these cases; the constitutional right is expressly claimed; it was*123 violated by State law, which was sustained by the State court, and we are called upon in a legitimate and proper way to afford redress. Our jurisdiction and our duty are plain and imperative.

It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.

The mischief to be remedied was not merely slavery and its incidents and consequences; but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestation.

But great fears are expressed that this construction of the amendment will lead to enactments by Congress interfering with the internal affairs of the States, and establishing therein civil and criminal codes of law for the government of the citizens, and thus abolishing the State governments in everything but name; or else, that it will lead the Federal courts to draw to their cognizance the supervision of State tribunals on every subject of judicial inquiry, on the plea of ascertaining whether the privileges and immunities of citizens have not been abridged.

In my judgment no such practical inconveniences would arise. Very little, if any, legislation on the part of Congress would be required to carry the amendment into effect. Like the prohibition against passing a law impairing the obligation of a contract, it would execute itself. The point would*124 be regularly raised, in a suit at law, and settled by final reference to the Federal court. As the privileges and immunities protected are only those fundamental ones which belong to every citizen, they would soon become so far defined as to cause but a slight accumulation of business in the Federal courts. Besides, the recognized existence of the law would prevent its frequent violation. But even if the business of the National courts should be increased, Congress could easily supply the remedy by increasing their number and efficiency. The great question is, What is the true construction of the amendment? When once we find that, we shall find the means of giving it effect. The argument from inconvenience ought not to have a very controlling influence in questions of this sort. The National will and National interest are of far greater importance.

In my opinion the judgment of the Supreme Court of Louisiana ought to be reversed.

41

4 Washington, 380.

Mr. Justice SWAYNE, dissenting:

I concur in the dissent in these cases and in the views expressed by my brethren, Mr. Justice Field and Mr. Justice Bradley. I desire, however, to submit a few additional remarks.

The first eleven amendments to the Constitution were intended to be checks and limitations upon the government which that instrument called into existence. They had their origin in a spirit of jealousy on the part of the States, which existed when the Constitution was adopted. The first ten were proposed in 1789 by the first Congress at its first session after the organization of the government. The eleventh was proposed in 1794, and the twelfth in 1803. The one last mentioned regulates the mode of electing the President and Vice-President. It neither increased nor diminished the power of the General Government, and may be said in that respect to occupy neutral ground. No further amendments were made until 1865, a period of more than sixty years. The thirteenth amendment was proposed by Congress on the 1st of February, 1865, the fourteenth on*125 the 16th of June, 1866, and the fifteenth on the 27th of February, 1869. These amendments are a new departure, and mark an important epoch in the constitutional history of the country. They trench directly upon the power of the States, and deeply affect those bodies. They are, in this respect, at the opposite pole from the first eleven.42

Fairly construed these amendments may be said to rise to the dignity of a new Magna Charta. The thirteenth blotted out slavery and forbade forever its restoration. It struck the fetters from four millions of human beings and raised them at once to the sphere of freemen. This was an act of grace and justice performed by the Nation. Before the war it could have been done only by the States where the institution existed, acting severally and separately from each other. The power then rested wholly with them. In that way, apparently, such a result could never have occurred. The power of Congress did not extend to the subject, except in the Territories.

The fourteenth amendment consists of five sections. The first is as follows: 'All persons born or naturalized within the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

The fifth section declares that Congress shall have power to enforce the provisions of this amendment by appropriate legislation.

The fifteenth amendment declares that the right to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. Until this amendment was adopted the subject*126 to which it relates was wholly within the jurisdiction of the States. The General Government was excluded from participation.

The first section of the fourteenth amendment is alone involved in the consideration of these cases. No searching analysis is necessary to eliminate its meaning. Its language is intelligible and direct. Nothing can be more transparent. Every word employed has an established signification. There is no room for construction. There is nothing to construe. Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out.

(1.) Citizens of the States and of the United States are defined.

(2.) It is declared that no State shall, by law, abridge the privileges or immunities of citizens of the United States.

(3.) That no State shall deprive any person, whether a citizen or not, of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

A citizen of a State is ipso facto a citizen of the United States. No one can be the former without being also the latter; but the latter, by losing his residence in one State without acquiring it in another, although he continues to be the latter, ceases for the time to be the former. 'The privileges and immunities' of a citizen of the United States include, among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation. The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection. All those which belong to the citizen of a State, except as a bills of attainder, ex post facto*127 laws, and laws impairing the obligation of contracts,43 are left to the guardianship of the bills of rights, constitutions, and laws of the States respectively. Those rights may all be enjoyed in every State by the citizens of every other State by virtue of clause 2, section 4, article 1, of the Constitution of the United States as it was originally framed. This section does not in anywise affect them; such was not its purpose.

In the next category, obviously ex industri a, to prevent, as far as may be, the possibility of misinterpretation, either as to persons or things, the phrases 'citizens of the United States' and 'privileges and immunities' are dropped, and more simple and comprehensive terms are substituted. The substitutes are 'any person,' and 'life,' 'liberty,' and 'property,' and 'the equal protection of the laws.' Life, liberty, and property are forbidden to be taken 'without due process of law,' and 'equal protection of the laws' is guaranteed to all. Life is the gift of God, and the right to preserve it is the most sacred of the rights of man. Liberty is freedom from all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies to a large extent at the foundation of most other forms of property, and of all solid individual and national prosperity. 'Due process of law' is the application of the law as it exists in the fair and regular course of administrative procedure. 'The equal protection of the laws' places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness.44*128 It is admitted that the plaintiffs in error are citizens of the United States, and persons within the jurisdiction of Louisiana. The cases before us, therefore, present but two questions.

(1.) Does the act of the legislature creating the monopoly in question abridge the privileges and immunities of the plaintiffs in error as citizens of the United States?

(2.) Does it deprive them of liberty or property without due process of law, or deny them the equal protection of the laws of the State, they being persons 'within its jurisdiction?'

Both these inquiries I remit for their answer as to the facts to the opinions of my brethren, Mr. Justice Field and Mr. Justice Bradley. They are full and conclusive upon the subject. A more flagrant and indefensible invasion of the rights of many for the benefit of a few has not occurred in the legislative history of the country. The response to both inquiries should be in the affirmative. In my opinion the cases, as presented in the record, are clearly within the letter and meaning of both the negative categories of the sixth section. The judgments before us should, therefore, be reversed.

These amendments are all consequences of the late civil war. The prejudices and apprehension as to the central government which prevailed when the Constitution was adopted were dispelled by the light of experience. The public mind became satisfied that there was less danger of tyranny in the head than of anarchy and tyranny in the members. The provisions of this section are all eminently conservative in their character. They are a bulwark of defence, and can never be made an engine of oppression. The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language 'citizens of the United States' was meant all such citizens; and by 'any person'*129 was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men. It is objected that the power conferred is novel and large. The answer is that the novelty was known and the measure deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such an should exist in every well-ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided? It is necessary to enable the government of the nation to secure to every one within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy. Without such authority any government claiming to be national is glaringly defective. The construction adopted by the majority of my brethren is, in my judgment, much too narrow. It defeats, by a limitation not anticipated, the intent of those by whom the instrument was framed and of those by whom it was adopted. To the extent of that limitation it turns, as it were, what was meant for bread into a stone. By the Constitution, as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the States. That want was intended to be supplied by this amendment. Against the former this court has been called upon more than once to interpose. Authority of the same amplitude was intended to be conferred as to the latter. But this arm of our jurisdiction is, in these cases, stricken down by the judgment just given. Nowhere, than in this court, ought the will of the nation, as thus expressed, to be more liberally construed or more cordially executed. This determination of the majority seems to me to lie far in the other direction.

*130I earnestly hope that the consequences to follow may prove less serious and far-reaching than the minority fear they will be.

42

Barron v. Baltimore, 7 Peters, 243; Livingston v. Moore, Id. 551; Pox v. Ohio, 5 Howard, 429; Smith v. Maryland, 18 Id. 71; Pervear v. Commonwealth, 5 Wallace, 476; Twitchell v Commonwealth, 7 Id. 321.

43

Constitution of the United States, Article I, Section 10.

44

Corfield v. Coryell, 4 Washington, 380; Lemmon v. The People, 26 Barbour, 274, and 20 New York, 626; Conner v. Elliott, 18 Howard, 593; Murray v. McCarty, 2 Mumford, 399; Campbell v. Morris, 3 Harris & McHenry, 554; Towles's Case, 5 Leigh, 748; State v. Medbury, 3 Rhode Island, 142; 1 Tucker's Blackstone, 145; 1 Cooley's Blackstone, 125, 128.

United States v. Cruikshank et al.

April Term, 1874.

This was an indictment under the enforcement act of May 31, 1870, against [William J. Cruikshank and] nearly one hundred other persons, charging, in the first count, that on the 13th day of April, 1873, at Grant parish, in the state of Louisiana, the defendants unlawfully and feloniously did band together with the unlawful and felonious intent and purpose to injure, oppress, threaten and intimidate one Levi Nelson and one Alexander Tillman, being citizens of the United States of African descent, and persons of color, and in the peace of the state and the United States, with the unlawful and felonious intent thereby to hinder and prevent them in their free exercise and enjoyment of their lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceable and lawful purpose, the same being a right and privilege granted or secured to them in common with all other good citizens of the United States, by the constitution and laws of the United States, contrary to the form of the statute, etc. The ninth count repeated the same charge, changing only the words ‘band together,’ for the words ‘conspire together.’ The seven counts following the first (with the corresponding seven counts following the ninth) charge a conspiracy to injure, oppress, threaten and intimidate the same persons with the intent to prevent and hinder them in the exercise and enjoyment of certain other rights and privileges, namely: in the second count, the right ‘to keep and bear arms for a lawful purpose;’ in the third, with the intent ‘to deprive them of their lives and liberty of person without due process of law;’ in the fourth, the right ‘to the full and equal benefit of all laws and proceedings enacted by the state or the United States for the security of persons and property, and enjoyed by white citizens;’ in the fifth, ‘the rights, privileges, immunities and protection granted and secured to them as citizens of the United States and of Louisiana, by reason of their race and color, and because they were of African descent, and persons of color;’ in the sixth, ‘the right to vote at any future election, knowing them to be qualified;’ in the seventh, ‘with intent to put them in fear of bodily harm, injure and oppress them, because they had voted at a previous election held in November, 1872;’ in the eighth, ‘every, each, all and singular the several rights and privileges granted or secured to them in common with all good citizens of the United States.’ The last sixteen counts charged the murder of the same persons in executing the conspiracy. Three of the defendants being convicted on the first sixteen counts of conspiracy only, motion was made in arrest of judgment, and argued by

Attorneys and Law Firms

R. H. Marr, E. John Ellis, W. R. Whitaker, and Mr. Bryan, for defendants.

J. R. Beckwith, U. S. Atty., for the United States.

Opinion

BRADLEY, Circuit Justice.

The judges not being agreed, BRADLEY, Circuit Justice, delivered the following opinion in favor of the motion, which was granted accordingly, and the case was certified to the supreme court:

The indictment in this case is founded on the 6th and 7th sections of the act of congress approved May 31, 1870, entitled ‘An act to enforce the rights of citizens of the United States to vote in the several states of this Union, and for other purposes.’ 16 Stat. 140.

It contains two distinct series of counts, in one of which the defendants are charged with having unlawfully and feloniously banded or conspired together to intimidate certain persons of African descent (specified by name), and thereby to hinder and prevent them in, and deprive them of, the free exercise and enjoyment of certain supposed constitutional rights and privileges, respectively specified in the several counts of the indictment, such as, in one count, the right peaceably to assemble themselves together; in another, the right to keep and bear arms; in a third, the right to be protected against deprivation of life, liberty and property without due process of law; in a fourth, the right to the full and equal benefit of the laws; in another, the right to vote, etc. 

The second series or counts charges murder in addition to, and whilst carrying out, the conspiracies charged.

Three of the defendants, Cruikshank, Hadnot and Irwin, have been convicted of conspiracy under the first series of counts, which are founded on the sixth section of the act, and now move in arrest of judgment, on the ground that the act is unconstitutional, and that the indictment does not charge any crime under it.

The main ground of objection is that the act is municipal in its character, operating directly *709 on the conduct of individuals, and taking the place of ordinary state legislation; and that there is no constitutional authority for such an act, inasmuch as the state laws furnish adequate remedy for the alleged wrongs committed.

It cannot, of course, be denied that express power is given to congress to enforce by appropriate legislation the 13th, 14th and 15th amendments of the constitution, but it is insisted that this act does not pursue the appropriate mode of doing this. A brief examination of its provisions is necessary more fully to understand the form in which the questions arise.

The first section provides that all citizens of the United States, otherwise qualified, shall be allowed to vote at all elections in any state, county, city, township, etc., without distinction of race, color or previous condition of servitude, any constitution, law, custom or usage of any state or territory to the contrary notwithstanding. This is not quite the converse of the 15th amendment. That amendment does not establish the right of any citizens to vote; it merely declares that race, color or previous condition of servitude shall not exclude them. This is an important distinction, and has a decided bearing on the questions at issue.

The second section requires that equal opportunity shall be given to all citizens, without distinction of race, color or previous condition of servitude, to perform any act required as a prerequisite or qualification for voting, and makes it a penal offense for officers and others to refuse or omit to give such equal opportunity.

The third section makes the offer to perform such preparatory act, if not performed by reason of such wrongful act or omission of the officers or others, equivalent to performance; and makes it the duty of inspectors or judges of election, on affidavit of such offer being made, to receive the party's vote; and makes it a penal offense to refuse to do so.

These three sections relate to the right secured by the 15th amendment.

The fourth section makes it a penal offense for any person, by force, bribery, threats, etc., to hinder or prevent, or to conspire with others to hinder or prevent, any citizen from performing any preparatory act requisite to qualify him to vote, or from voting, at any election. This section does not seem to be based on the 15th amendment, nor to relate to the specific right secured thereby. It extends far beyond the scope of the amendment, as will more fully appear hereafter.

The fifth section makes it a penal offense for any person to prevent or attempt to prevent, hinder or intimidate any person from exercising the right of suffrage, to whom it is secured by the 15th amendment, by means of bribery, threats, or threats of depriving of occupation, or of ejecting from lands or tenements, or of refusing to renew a lease, or of violence to such person or his family.

The sixth section, under which the first sixteen counts of the indictment are framed, contains two distinct clauses. 

The first declares that

‘if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another with intent (to violate any provision of this act), such persons shall be held guilty of felony.’

Of course this would include conspiracy to prevent any person from voting, or from performing any preparatory act requisite thereto. The next clause has a larger scope. Repeating the introductory and concluding words, it is as follows:

‘If two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another with intent to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony.’

Here it is made penal to enter into a conspiracy to injure or intimidate any citizen, with intent to prevent or hinder his exercise and enjoyment, not merely of the right to vote, but of any right or privilege granted or secured to him by the constitution or laws of the United States.

The question is at once suggested, under what clause of the constitution does the power to enact such a law arise?

It is undoubtedly a sound proposition, that whenever a right is guarantied by the constitution of the United States, congress has the power to provide for its enforcement, either by implication arising from the correlative duty of government to protect, wherever a right to the citizen is conferred, or under the general power (contained in article 1, § 8, par. 18) ‘to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or any department or officer thereof.’

It was on the principle first stated that the fugitive slave law was sustained by the supreme court of the United States. Prigg v. Pennsylvania, 16 Pet. [41 U. S.] 539. The constitution guarantied the rendition of fugitives held to labor or service in any state, and it was held that congress had, by implication, the power to enforce the guaranty by legislation. ‘They require,’ says Justice Story, delivering the opinion of the majority of the court,

‘the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the constitution guaranties the right, and if it requires the delivery upon the claim of the owner (as cannot well be doubted), the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be, that where the end is required, the means are given; and, where the duty is *710 enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national constitution and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The state, therefore, cannot be compelled to enforce them, etc. The natural if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution.’ 

To the objection that the power did not fall within the scope of the enumerated powers of legislation confided to congress, Justice Story answers: ‘Stripped of its artificial and technical structure, the argument comes to this, that, although rights are exclusively secured by, or duties are exclusively imposed upon, the national government, yet, unless the power to enforce these rights or to execute these duties can be found among the express powers of legislation enumerated in the constitution, they remain without any means of giving them effect by any act of congress, and they must operate solely proprio vigore, however defective may be their operation; nay, even although in a practical sense, they may become a nullity from the want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpretation of the constitution, it must, in a great measure, fail to attain many of its avowed and positive objects as a security of rights and a recognition of duties. Such a limited construction of the constitution has never yet been adopted as correct, either in theory or practice.’ [Prigg v. Pennsylvania] 16 Pet. [41 U. S.] 618.

It seems to be firmly established by the unanimous opinion of the judges in the above quoted case that congress has power to enforce, by appropriate legislation, every right and privilege given or guarantied by the constitution.

The method of enforcement, or the legislation appropriate to that end, will depend upon the character of the right conferred. It may be by the establishment of regulations for attaining the object of the right, the imposition of penalties for its violation or the institution of judicial procedure for its vindication when assailed, or when ignored by the state courts; or it may be by all of these together.

One method of enforcement may be applicable to one fundamental right, and not applicable to another.

With regard to those acknowledged rights and privileges of the citizen, which form a part of his political inheritance derived from the mother country, and which were challenged and vindicated by centuries of stubborn resistance to arbitrary power, they belong to him as his birthright, and it is the duty of the particular state of which he is a citizen to protect and enforce them, and to do naught to deprive him of their full enjoyment.

When any of these rights and privileges are secured in the constitution of the United States only by a declaration that the state or the United States shall not violate or abridge them, it is at once understood that they are not created or conferred by the constitution, but that the constitution only guaranties that they shall not be impaired by the state, or the United States, as the case may be. The fulfillment of this guaranty by the United States is the only duty with which that government is charged. The affirmative enforcement of the rights and privileges themselves, unless something more is expressed, does not devolve upon it, but belongs to the state government as a part of its residuary sovereignty.

For example, when it is declared that no state shall deprive any person of life, liberty, or property without due process of law, this declaration is not intended as a guaranty against the commission of murder, false imprisonment, robbery, or any other crime committed by individual malefactors, so as to give congress the power to pass laws for the punishment of such crimes in the several states generally. It is a constitutional security against arbitrary and unjust legislation by which a man may be proceeded against in a summary manner and arbitrarily arrested and condemned, without the benefit of those time-honored forms of proceeding in open court and trial by jury, which is the clear right of every freeman, both in the parent country and in this. It is a guaranty of protection against the acts of the state government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guaranty against the commission of individual offenses; and the power of congress, whether implied or expressed, to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of ordinary crime within the states. This would be to clothe congress with power to pass laws for the general preservation of social order in every state. The enforcement of the guaranty does not require or authorize congress to perform the duty which the guaranty itself supposes it to be the duty of the state to perform, and which it requires the state to perform. The duty and power of enforcement take their inception from the moment that the state fails to comply with the duty enjoined, or violates the prohibition imposed.

No state may pass a law impairing the obligation of contracts. Does this authorize congress to pass laws for the general enforcement of contracts in the states? Certainly not. But when the state has passed a law which violates the prohibition, congress may provide a remedy. It did so in the twenty-fifth section of the judiciary act [1 Stat. 85] by authorizing an appeal to the supreme court of *711 the United States of all cases where a constitutional or federal right should be denied or overruled in a state court.

Again, ‘the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.’ But this does not authorize congress to pass a general system of municipal law for the security of person and property, to have effect in the several states for the protection of citizens of other states to whom the fundamental right is guarantied. It only authorizes appropriate and efficient remedies to be provided in case the guaranty is violated.

Where affirmative legislation is required to give the citizen the right guarantied, congress may undoubtedly adopt it, as was done in the case of the fugitive slave law and as has been done in later times, to carry into full effect the 13th amendment of the constitution by the passage of the civil rights bill, as will be more fully noted hereafter.

But with regard to mere constitutional prohibitions of state interference with established or acknowledged privileges and immunities, the appropriate legislation to enforce such prohibitions is that which may be necessary or proper for furnishing suitable redress when such prohibitions are disregarded or violated. Where no violation is attempted, the interference of congress would be officious, unnecessary, and inappropriate.

The bearing of these observations on the effect of the several recent amendments of the constitution, in conferring legislative powers upon congress, is next to be noticed.

The 13th amendment declares that neither slavery nor involuntary servitude, except as a punishment for crime, shall exist within the United States or any place subject to its jurisdiction, and that congress shall have power to enforce this article by appropriate legislation. This is not merely a prohibition against the passage or enforcement of any law inflicting or establishing slavery or involuntary servitude, but it is a positive declaration that slavery shall not exist. It prohibits the thing. In the enforcement of this article, therefore, congress has to deal with the subject matter. If an amendment had been adopted that polygamy should not exist within the United States, and a similar power to enforce it had been given as in the case of slavery, congress would certainly have had the power to legislate for the suppression and punishment of polygamy. So, undoubtedly, by the 13th amendment congress has power to legislate for the entire eradication of slavery in the United States. This amendment had an affirmative operation the moment it was adopted. It enfranchised four millions of slaves, if, indeed, they had not previously been enfranchised by the operation of the Civil War. Congress, therefore, acquired the power not only to legislate for the eradication of slavery, but the power to give full effect to this bestowment of liberty on these millions of people. All this it essayed to do by the civil rights bill, passed April 9, 1866 (14 Stat. 27), by which it was declared that all persons born in the United States, and not subject to a foreign power (except Indians, not taxed), should be citizens of the United States; and that such citizens, of every race and color, without any regard to any previous condition of slavery or involuntary servitude, should have the same right in every state and territory to make and enforce contracts, to sue be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and should be subject to like punishment, pains and penalties, and to none other, any law, etc., to the contrary notwithstanding.

It was supposed that the eradication of slavery and involuntary servitude of every form and description required that the slave should be made a citizen and placed on an entire equality before the law with the white citizen, and, therefore, that congress had the power, under the amendment, to declare and effectuate these objects. The form of doing this, by extending the right of citizenship and equality before the law to persons of every race and color (except Indians not taxed and, of course, excepting the white race, whose privileges were adopted as the standard), although it embraced many persons, free colored people and others, who were already citizens in several of the states, was necessary for the purpose of settling a point which had been raised by eminent authority, that none but the white race were entitled to the rights of citizenship in this country. As disability to be a citizen and enjoy equal rights was deemed one form or badge of servitude, it was supposed that congress had the power, under the amendment, to settle this point of doubt, and place the other races on the same plane of privilege as that occupied by the white race.

Conceding this to be true (which I think it is), congress then had the right to go further and to enforce its declaration by passing laws for the prosecution and punishment of those who should deprive, or attempt to deprive, any person of the rights thus conferred upon him. Without having this power, congress could not enforce the amendment. It cannot be doubted, therefore, that congress had the power to make it a penal offense to conspire to deprive a person of, or to hinder him in, the exercise and enjoyment of the rights and privileges conferred by the 13th amendment and the laws thus passed in pursuance thereof.

But this power does not authorize congress to pass laws for the punishment of ordinary crimes and offenses against persons of the colored race or any other race. That belongs to the state government alone. All ordinary murders, robberies, assaults, thefts, and offenses whatsoever are cognizable only in the state courts, unless, indeed, the state should deny *712 to the class of persons referred to the equal protection of the laws. Then, of course, congress could provide remedies for their security and protection. But, in ordinary cases, where the laws of the state are not obnoxious to the provisions of the amendment, the duty of congress in the creation and punishment of offenses is limited to those offenses which aim at the deprivation of the colored citizen's enjoyment and exercise of his rights of citizenship and of equal protection of the laws because of his race, color, or previous condition of servitude.

To illustrate: If in a community or neighborhood composed principally of whites, a citizen of African descent, or of the Indian race, not within the exception of the amendment, should propose to lease and cultivate a farm, and a combination should be formed to expel him and prevent him from the accomplishment of his purpose on account of his race or color, it cannot be doubted that this would be a case within the power of congress to remedy and redress. It would be a case of interference with that person's exercise of his equal rights as a citizen because of his race.

But if that person should be injured in his person or property by any wrongdoer for the mere felonious or wrongful purpose of malice, revenge, hatred, or gain, without any design to interfere with his rights of citizenship or equality before the laws, as being a person of a different race and color from the white race, it would be an ordinary crime, punishable by the state laws only.

To constitute an offense, therefore, of which congress and the courts of the United States have a right to take cognizance under this amendment, there must be a design to injure a person, or deprive him of his equal right of enjoying the protection of the laws, by reason of his race, color, or previous condition of servitude. Otherwise it is a case exclusively within the jurisdiction of the state and its courts.

I will next consider the effect of the 15th amendment, to enforce which the law under consideration was primarily framed. The amendment declares that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude,’ and power is given to congress to enforce the amendment by appropriate legislation. Although negative in form, and therefore, at first view, apparently to be governed by the rule that congress has no duty to perform until the state has violated its provisions, nevertheless in substance, it confers a positive right which did not exist before. The language is peculiar. It is composed of two negatives. The right shall not be denied. That is, the right shall be enjoyed; the right, namely, to be exempt from the disability of race, color, or previous condition of servitude, as respects the right to vote. In terms it has a general application to all, but the history of the events out of which the amendment grew shows that it was principally intended to confer upon colored citizens the right of suffrage. The majority of the court in the recent Slaughterhouse Cases, 16 Wall. [83 U. S.] 81, say: ‘In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause.’ (Speaking of that clause in the 14th amendment which prohibits the states from denying to any person within its jurisdiction, the equal protection of the laws.) ‘The existence of laws in the states where the newly emancipated negroes existed, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. * * * We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.’ Whether this suggestion of the court, that the recent amendments were intended for the benefit of the African race alone, be accepted or not, it is manifest that the 15th amendment was primarily and principally intended for their benefit, and that it does have the affirmative effect before stated of conferring upon them an equal right to vote with that enjoyed by white citizens. It was, in fact, a constitutional extension of the civil rights bill passed in 1866, conferring upon the emancipated slave (as well as all persons of his race) another specific right in addition to those enumerated in that bill; and it is to be interpreted on the same general principles.

But whilst the amendment has the effect adverted to, it must be remembered that the right conferred and guarantied is not an absolute, but a relative one. It does not confer the right to vote. That is the prerogative of the state laws. It only confers a right not to be excluded from voting by reason of race, color or previous condition of servitude, and this is all the right that congress can enforce. It confers upon citizens of the African race the same right to vote as white citizens possess. It makes them equal. This is the whole scope of the amendment.

The powers of congress, therefore, are confined within this scope. The amendment does not confer upon congress any power to regulate elections or the right of voting where it did not have that power before, except in the particular matter specified. It does, however, confer upon congress the right of enforcing the prohibition imposed against excluding citizens of the United States on account of race, color, or previous condition of servitude. Before the amendment congress had the power to regulate elections and the right of voting in the District of Columbia and in the territories, and to regulate (by altering any regulations made by the state) the time, place and manner of holding elections for senators and representatives in the several states. It has that power still, subject to the prohibition of the amendment. Also, before *713 the amendment, the states had the power to regulate all state elections and the right of voting therein. They have that power still, subject to the prohibition of the amendment and the right of congress to enforce it. Congress has not acquired any additional right to regulate the latter elections, or the right of voting therein, which it did not possess before, except the power to enforce the prohibition imposed on the states, and the equal right acquired by all races and colors to vote.

The manner in which the prohibition (or the equal right to vote) may be enforced is, of course, the question of principal interest in this inquiry.

When the right of citizens of the United States of vote is denied or abridged by a state on account of their race, color, or previous condition of servitude, either by withholding the right itself or the remedies which are given to other citizens to enforce it, then, undoubtedly, congress has the power to pass laws to directly enforce the right and punish individuals for its violation, because that would be the only appropriate and efficient mode of enforcing the amendment. 

Congress cannot, with any propriety, or to any good purpose, pass laws forbidding the state legislature to deny or abridge the right, nor declaring void any state legislation adopted for that end. The prohibition is already in the constitutional amendment, and laws in violation of it are absolutely void by virtue of that prohibition. So far as relates to rendering null and void the obnoxious law, it is done already; but that does not help the person entitled to vote. By the supposition the state law gives him no remedy and no redress. It is clear, therefore, that the only practical way in which congress can enforce the amendment is by itself giving a remedy and giving redress. If the party should be sued in the state court for attempting to exercise his right, of course the appeal to the supreme court of the United States, given by the twenty-fifth section of the judiciary act, would be all the remedy he would need; but it would be entirely inefficient in securing to him the actual exercise of his right to vote.

But suppose that the laws of the state are in harmony with the amendment, at least contain nothing repugnant thereto; has congress the power to pass laws concurrently with the state to enforce the right of every race and color, without regard to the previous condition of servitude, to an equality in the right to vote?

There is no essential incongruity in the coexistence of concurrent laws, state and federal, for the punishment of the same unlawful acts as offenses both against the laws of the state and the laws of the United States. Robbery of the mails, counterfeiting the coin, assaults upon a United States marshal or other officer while in the performance of his duty, and many other cases of like nature, will readily suggest themselves. Moore v. Illinois, 14 How. [55 U. S.] 20. Mr. Justice Grier, in delivering the opinion of the supreme court in the case cited says: ‘Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the state, a riot, assault, or a murder, and subject the same person to a punishment, under the state laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender cannot be doubted.’

The real difficulty in the present case is to determine whether the amendment has given to congress any power to legislate except to furnish redress in cases where the states violate the amendment.

Considering, as before intimated, that the amendment, notwithstanding its negative form, substantially guaranties the equal right to vote to citizens of every race and color, I am inclined to the opinion that congress has the power to secure that right not only as against the unfriendly operation of state laws, but against outrage, violence, and combinations on the part of individuals, irrespective of the state laws.

Such was the opinion of congress itself in passing the law at a time when many of its members were the same who had consulted upon the original form of the amendment in proposing it to the states. And as such a construction of the amendment is admissible, and the question is one at least of grave doubt, it would be assuming a great deal for this court to decide the law, to the extent indicated, unconstitutional. 

But the limitations which are prescribed by the amendment must not be lost sight of. It is not the right to vote which is guarantied to al citizens. Congress cannot interfere with the regulation of that right by the states except to prevent by appropriate legislation any distinction as to race, color, or previous condition of servitude. The state may establish any other conditions and discriminations it pleases, whether as to age, sex, property, education, or anything else. Congress, so far as the 15th amendment is concerned, is limited to the one subject of discrimination—on account or race, color or previous condition of servitude. It can regulate as to nothing else. No interference with a person's right to vote, unless made on account of his race, color or previous condition of servitude, is subject to congressional animadversion. There may be a conspiracy to prevent persons from voting having no reference to this discrimination. It may include whites as well as blacks, or may be confined altogether to the latter. It may have reference to the particular politics of the parties. All such conspiracies are amenable to the state laws alone. To bring them within the scope of the amendment and of the powers of congress they must have for motive *714 the race, color or previous condition of servitude of the party whose right is assailed.

According to my view the law on the subject may be generalized in the following proposition: The war of race, whether it assumes the dimensions of civil strife or domestic violence, whether carried on in a guerrilla of predatory form, or by private combinations, or even by private outrage or intimidation, is subject to the jurisdiction of the government of the United States; and when any atrocity is committed which may be assigned to this cause it may be punished by the laws and in the courts of the United States; but any outrages, atrocities, or conspiracies, whether against the colored race or the white race, which do not flow from this cause, but spring from the ordinary felonious or criminal intent which prompts to such unlawful acts, are not within the jurisdiction of the United States, but within the sole jurisdiction of the states, unless, indeed, the state, by its laws, denies to any particular race equality of rights, in which case the government of the United States may furnish remedy and redress to the fullest extent and in the most direct manner.

Unless this distinction be made we are driven to one of two extremes—either that congress can never interfere where the state laws are unobjectionable, however remiss the state authorities may be in executing them, and however much a proscribed race may be oppressed; or that congress may pass an entire body of municipal law for the protection of person and property within the states, to operate concurrently with the state laws, for the protection and benefit of a particular class of the community. This fundamental principle, I think, applies to both the 13th and 15th amendments.

After what has been said, a few observations will suffice as to the effect of the 14th amendment, upon the questions under consideration. It is claimed that, by this amendment, congress is empowered to pass laws for directly enforcing all privileges and immunities of citizens of the United States by original proceedings in the courts of the United States, because it provides, amongst other things, that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and because it gives congress power to enforce its provisions by appropriate legislation. 

If the power to enforce the amendment were equivalent to the power to legislate generally on the subject matter of the privileges and immunities referred to, this would be a legitimate conclusion. But, as before intimated, that subject matter may consist of rights and privileges not derived from the grants of the constitution, but from those inherited privileges which belong to every citizen, as his birthright, or from that body of natural rights which are recognized and regarded as sacred in all free governments; and the only manner in which the constitution recognizes them may be in a prohibition against the government of the United States, or the state governments, interfering with them.

It is obvious, therefore, that the manner of enforcing the provisions of this amendment will depend upon the character of the privilege or immunity in question. If simply prohibitory of governmental action there will be nothing to enforce until such action is undertaken. How can a prohibition, in the nature of things, be enforced until it is violated? Laws may be passed in advance to meet the contingency of a violation, but they can have no application until it occurs.

On the other hand, when the provision is violated by the passage of an obnoxious law, such law is clearly void, and all acts done under it will be trespasses. The legislation required from congress, therefore, is such as will provide a preventive or compensatory remedy or due punishment for such trespasses; and appeals from the state courts to the United States courts in cases that come up for adjudication.

If these views are correct, there can be no constitutional legislation of congress for directly enforcing the privileges and immunities of citizens of the United States by original proceedings in the courts of the United States, where the only constitutional guaranty of such privileges and immunities is, that no state shall pass any law to abridge them, and where the state has passed no laws adverse to them, but, on the contrary, has passed laws to sustain and enforce them.

I will now proceed to examine the several counts in the indictment, and endeavor to test their validity by the principles which have been laid down. These have been so fully enunciated and explained, that a very brief examination of the counts will suffice.

The first count is for a conspiracy to interfere with the right ‘to peaceably assemble together with each other, and with other citizens, for a peaceable and lawful purpose.’ This right is guarantied in the first amendment to the constitution, which declares that ‘congress shall make no law abridging the right of the people peaceably to assemble and to petition the government for a redress of grievances.’

Does this disaffirmance of the power of congress to prevent the assembling of the people amount to an affirmative power to punish individuals for disturbing assemblies? This would be a strange inference. That is the prerogative of the states. It belongs to the preservation of the public peace and the fundamental rights of the people. The people of the states do not ask congress to protect the right, but demand that it shall not interfere with it. Has anything since occurred to give congress legislative power over the subject matter? The 14th amendment declares that no state shall by law abridge the privileges or immunities of citizens of the United States. Grant that this prohibition now prevents the states from interfering with the right to assemble, as being one of such privileges and immunities, still, does it give congress power to legislate over the subject? Power to enforce the amendment is all that *715 is given to congress. If the amendment is not violated, it has no power over the subject.

The second count, which is for a conspiracy to interfere with certain citizens in their right to bear arms, is open to the same criticism as the first.

The third count charges a conspiracy to deprive certain citizens of African descent of their lives and liberties without due process of law. Every murderer and robber does this. Congress surely is not vested with power to legislate for the suppression and punishment of all murders, robberies, and assaults committed within the states. In none of these counts is there any averment that the state had, by its laws, interfered with any of the rights referred to, or that it had attempted to deprive the citizens of life, liberty, or property without due process of law, or that it did not afford to all the equal protection of the laws. The third count cannot be sustained.

The fourth count charges a conspiracy to deprive certain colored citizens of African descent, of the free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property which is enjoyed by the white citizens. The right and privilege to interfere with the exercise of which is here alleged to have been the object of the conspiracy is not contained in the constitution in express terms. The 14th amendment, amongst other things, declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. But the indictment does not allege that this has been done. The count manifestly refers to the rights secured by the civil rights bill of April 9, 1866, which has already been referred to. That act, as we have seen, expressly declares that all citizens of every race and color, without regard to any previous condition of slavery or involuntary servitude, shall have the same right in every state and territory to make and enforce contracts, etc., and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens. The conspiracy charged in the fourth count is a conspiracy to interfere with the free exercise and enjoyment of this right. But the count does not contain any allegation that the defendants committed the acts complained of with a design to deprive the injured persons of their rights on account of their race, color or previous condition of servitude. This, as we have seen, is an essential ingredient in the crime to bring it within the cognizance of the United States authorities. Perhaps such a design may be inferred from the allegation that the persons injured were of the African race, and that the intent was to deprive them of the exercise and enjoyment of the rights enjoyed by white citizens. But it ought not to have been left to inference; it should have been alleged. On this ground, therefore, I think this count is defective and cannot be sustained.

It is also defective on account of the vagueness and generality of the charge—‘to prevent and hinder (them) in the free exercise and enjoyment of their several and respective right and privilege to the full and equal benefit of all laws and proceedings then and there enacted,’ etc. It seems to me that such a general and sweeping charge, without any specification of any laws or proceedings, does not amount to the averment of a criminal act. It is not merely informal, it is insufficient.

The fifth and eighth counts are open to the same objection of vagueness and generality as the fourth, and for that reason neither of them can, in my judgment, be sustained.

The sixth count charges a conspiracy to prevent and hinder certain citizens of the United States, who were of African descent and persons of color, in the exercise and enjoyment of their right to vote at any election to be thereafter held in the state of Louisiana, or in the parish of Grant, knowing they had such right to vote.

A conspiracy to hinder a person from exercising his right to vote at any election is made indictable by the fourth section of the enforcement act; also by the sixth section, read in connection with the first. Over the general subject of the right to vote in the states, and the regulation of said right, congress, as we have seen, has no power to legislate. The fifteenth amendment relates only to discriminations on account of race, color and previous condition of servitude, and, as we have before shown, is a prohibition against the making of such discriminations. The law on which this count is founded is not confined to cases of discrimination above referred to. It is general and universal in its application. Such a law is not supported by the constitution.

The charge contained in the count does not describe a criminal offense known to any valid and constitutional law of the United States. It should, at least, have been shown that the conspiracy was entered into to deprive the injured persons of their right to vote by reason of their race, color or previous condition of servitude. This count I also regard as invalid.

The seventh count charges a conspiracy to injure and oppress certain colored citizens of African descent because, being duly qualified to vote, they had exercised their right to do so, and had voted at the election held in Louisiana, in November, 1872, and at other times. This count is subject to the same objection as the last, and is invalid for the same reason.

The next eight counts on which the verdict was found are literal copies, respectively, of the first eight, so far as relates to the language on which their validity depends. The *716 same observations apply to them which apply to the first eight.

In my opinion the motion in arrest of judgment must be granted.

NOTE. The order arresting the judgment in conformity with the above opinion of Mr. Justice Bradley was affirmed by the supreme court, where it was carried on writ of error and certificate of division, 92 U. S. 542.

United States v. Cruikshank Et Al.

ERROR to the Circuit Court of the United States for the District of Louisiana.

This was an indictment for conspiracy under the sixth section of the act of May 30, 1870, known as the Enforcement Act (16 Stat. 140), and consisted of thirty-two counts.

The first count was for banding together, with intent ‘unlawfully and feloniously to injure, oppress, threaten, and intimidate’ two citizens of the United States, ‘of African descent and persons of color,’ ‘with the unlawful and felonious intent thereby’ them ‘to hinder and prevent in their respective free *545 exercise and enjoyment of their lawful right and privilege to peaceably assemble together with each other and with other citizens of the said United States for a peaceable and lawful purpose.’

The second avers an intent to hinder and prevent the exercise by the same persons of the ‘right to keep and bear arms for a lawful purpose.’

The third avers an intent to deprive the same persons ‘of their respective several lives and liberty of person, without due process of law.’

The fourth avers an intent to deprive the same persons of the ‘free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property’ enjoyed by white citizens.

The fifth avers an intent to hinder and prevent the same persons ‘in the exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color’ of the said persons.

The sixth avers an intent to hinder and prevent the same persons in ‘the free exercise and enjoyment of the several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana.’

The seventh avers an intent ‘to put in great fear of bodily harm, injure, and oppress' the same persons, ‘because and for the reason’ that, having the right to vote, they had voted.

The eighth avers an intent ‘to prevent and hinder’ the same persons ‘in their several and respective free exercise and enjoyment of every, each, all, and singular and several rights and privileges granted and secured’ to them ‘by the constitution and laws of the United States.’

The next eight counts are a repetition of the first eight, except that, instead of the words ‘band together,’ the words ‘combine, conspire, and confederate together’ are used. Three of the defendants were found guilty under the first sixteen counts, and not guilty under the remaining counts.

The parties thus convicted moved in arrest of judgment on the following grounds:——

1. Because the matters and things set forth and charged in the several counts, one to sixteen inclusive, do not constitute offences against the laws of the United States, and do not come within the purview, true intent, and meaning of the act of Congress, approved 31st May, 1870, entitled ‘An Act to enforce the right of citizens of the United States,’ &c.

2. Because the matters and things in the said indictment set forth and charged do not constitute offences cognizable in teh Circuit Court, and do not come within its power and jurisdiction.

3. Because the offences created by the sixth section of the act of Congress referred to, and upon which section the aforesaid sixteen counts are based, are not constitutionally within the jurisdiction of the courts of the United States, and because the matters and things therein referred to are judicially cognizable by State tribunals only, and legislative action thereon is among the constitutionally reserved rights of the several States.

4. Because the said act, in so far as it creates offences and imposes penalties, is in violation of the Constitution of the United States, and an infringement of the rights of the several States and the people.

5. Because the eighth and sixteenth counts of the indictment are too vague, general, insufficient, and uncertain, to afford the accused proper notice to plead and prepare their defence, and set forth no specific offence under the law.

6. Because the verdict of the jury against the defendants is not warranted or supported by law.

On this motion the opinions of the judges were divided, that of the presiding judge being that the several counts in question are not sufficient in law, and do not contain charges of criminal matter indictable under the laws of the United States; and that the motion in arrest of judgment should be granted. The case comes up at the instance of the United States, on certificate of this division of opinion.

Sect. 1 of the Enforcement Act declares, that all citizens of the United States, otherwise qualified, shall be allowed to vote at all elections, without distinction of race, color, or previous servitude. *546

Sect. 2 provides, that, if by the law of any State or Territory a prerequisite to voting is necessary, equal opportunity for it shall be given to all, without distinction, &c.; and any person charged with the duty of furnishing the prerequisite, who refuses or knowingly omits to give full effect to this section, shall be guilty of misdemeanor.

Sect. 3 provides, that an offer of performance, in respect to the prerequisite, when proved by affidavit of the claimant, shall be equivalent to performance; and any judge or inspector of election who refuses to accept it shall be guilty, &c.

Sect. 4 provides, that any person who, by force, bribery, threats, intimidation, or other unlawful means, hinders, delays, prevents, or obstructs any citizen from qualifying himself to vote, or combines with others to do so, shall be guilty, &c.

 Sect. 5 provides, that any person who prevents, hinders, controls, or intimidates any person from exercising the right of suffrage, to whom it is secured by the fifteenth amendment, or attempts to do so, by bribery or threats of violence, or deprivation of property or employment, shall be guilty, &c.

The sixth section is as follows:——

‘That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provisions of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court,—the fine not to exceed $5,000, and the imprisonment not to exceed ten years; and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the constitution or laws of the United States.’

*547 This case was argued at the October Term, 1874, by Mr. Attorney-General Williams and Mr. Solicitor-General Phillips for the plaintiff in error; and by Mr. Reverdy Johnson, Mr. David Dudley Field, Mr. Philip Phillips, and Mr. R.H. Marr for the defendants in error.

*548 MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This case comes here with a certificate by the judges of the Circuit Court for the District of Louisiana that they were divided in opinion upon a question which occurred at the hearing. It presents for our consideration an indictment containing sixteen counts, divided into two series of eight counts each, based upon sect. 6 of the Enforcement Act of May 31, 1870. That section is as follows:—

"That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court, — the fine not to exceed $5,000, and the imprisonment not to exceed ten years; and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the constitution or laws of the United States." 16 Stat. 141.

The question certified arose upon a motion in arrest of judgment after a verdict of guilty generally upon the whole sixteen counts, and is stated to be, whether "the said sixteen counts of said indictment are severally good and sufficient in law, and contain charges of criminal matter indictable under the laws of the United States."

The general charge in the first eight counts is that of "banding," and in the second eight, that of "conspiring" together to injure, oppress, threaten, and intimidate Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color, with the intent thereby to hinder and prevent them in their free exercise and enjoyment of rights and privileges "granted and secured" to them "in common with all other good citizens of the United States by the constitution and laws of the United States."

The offences provided for by the statute in question do not consist in the mere "banding" or "conspiring" of two or *549 more persons together, but in their banding or conspiring with the intent, or for any of the purposes, specified. To bring this case under the operation of the statute, therefore, it must appear that the right, the enjoyment of which the conspirators intended to hinder or prevent, was one granted or secured by the constitution or laws of the United States. If it does not so appear, the criminal matter charged has not been made indictable by any act of Congress.

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-House Cases, 16 Wall. 74.

Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose.

Experience made the fact known to the people of the United States that they required a national government for national purposes. The separate governments of the separate States, bound together by the articles of confederation alone, were not sufficient for the promotion of the general welfare of the people in respect to foreign nations, or for their complete protection as citizens of the confederated States. For this reason, the people of the United States, "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for *550 the common defence, promote the general welfare, and secure the blessings of liberty" to themselves and their posterity (Const. Preamble), ordained and established the government of the United States, and defined its powers by a constitution, which they adopted as its fundamental law, and made its rule of action.

The government thus established and defined is to some extent a government of the States in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the States; but beyond, it has no existence. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.

The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act. Thus, if a marshal of the United States is unlawfully resisted while executing the process of the courts within a State, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the State by the breach of peace, in the assault. So, too, if one passes counterfeited coin of the United States within a State, it may be an offence against the United States and the State: the United States, because it discredits the coin; and the State, because of the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship *551 which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.

We now proceed to an examination of the indictment, to ascertain whether the several rights, which it is alleged the defendants intended to interfere with, are such as had been in law and in fact granted or secured by the constitution or laws of the United States.

The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose." The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id. 203, subject to State jurisdiction. *552 Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, "the scope and application of these amendments are no longer subjects of discussion here." They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in *553 these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, "of their respective several lives and liberty of person without due process of law." This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. "To secure these rights," says the Declaration of Independence, "governments are instituted among men, deriving their just powers from the consent of the governed." The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator." Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy *554 to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.

The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it secures "the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." These counts in the indictment do not call for the exercise of any of the powers conferred by this provision in the amendment.

The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in "the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States; and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens." There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case as presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States.

The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing *555 to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.

No question arises under the Civil Rights Act of April 9, 1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color.

Another objection is made to these counts, that they are too vague and uncertain. This will be considered hereafter, in connection with the same objection to other counts.

The sixth and fourteenth counts state the intent of the defendants to have been to hinder and prevent the citizens named, being of African descent, and colored, "in the free exercise and enjoyment of their several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana, or by the people of and in the parish of Grant aforesaid." In Minor v. Happersett, 21 Wall. 178, we decided that the Constitution of the United States has not conferred the right of suffrage upon any one, and that the United States have no voters of their own creation in the States. In United States v. Reese et al., supra, p. 214, we hold that the fifteenth amendment has invested the citizens of the United States with a new constitutional right which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship; but that exemption from discrimination in the exercise of that right on *556 account of race, &c., is. The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States; but the last has been.

Inasmuch, therefore, as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race, &c.;, it does not appear that it was their intent to interfere with any right granted or secured by the constitution or laws of the United States. We may suspect that race was the cause of the hostility; but it is not so averred. This is material to a description of the substance of the offence, and cannot be supplied by implication. Every thing essential must be charged positively, and not inferentially. The defect here is not in form, but in substance.

The seventh and fifteenth counts are no better than the sixth and fourteenth. The intent here charged is to put the parties named in great fear of bodily harm, and to injure and oppress them, because, being and having been in all things qualified, they had voted "at an election before that time had and held according to law by the people of the said State of Louisiana, in said State, to wit, on the fourth day of November, A.D. 1872, and at divers other elections by the people of the State, also before that time had and held according to law." There is nothing to show that the elections voted at were any other than State elections, or that the conspiracy was formed on account of the race of the parties against whom the conspirators were to act. The charge as made is really of nothing more than a conspiracy to commit a breach of the peace within a State. Certainly it will not be claimed that the United States have the power or are required to do mere police duty in the States. If a State cannot protect itself against domestic violence, the United States may, upon the call of the executive, when the legislature cannot be convened, lend their assistance for that purpose. This is a guaranty of the Constitution (art. 4, sect. 4); but it applies to no case like this.

We are, therefore, of the opinion that the first, second, third, fourth, sixth, seventh, ninth, tenth, eleventh, twelfth, fourteenth, *557 and fifteenth counts do not contain charges of a criminal nature made indictable under the laws of the United States, and that consequently they are not good and sufficient in law. They do not show that it was the intent of the defendants, by their conspiracy, to hinder or prevent the enjoyment of any right granted or secured by the Constitution.

We come now to consider the fifth and thirteenth and the eighth and sixteenth counts, which may be brought together for that purpose. The intent charged in the fifth and thirteenth is "to hinder and prevent the parties in their respective free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the United States, and as citizens of said State of Louisiana," "for the reason that they, ... being then and there citizens of said State and of the United States, were persons of African descent and race, and persons of color, and not white citizens thereof;" and in the eighth and sixteenth, to hinder and prevent them "in their several and respective free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the constitution and laws of the United States." The same general statement of the rights to be interfered with is found in the fifth and thirteenth counts.

According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all. The statute provides for the punishment of those who conspire "to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States." These counts in the indictment charge, in substance, that the intent in this case was to hinder and prevent these citizens in the free exercise and enjoyment of "every, each, all, and singular" the rights granted them by the Constitution, &c.; There is no specification of any particular right. The language is broad enough to cover all.

In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right "to be informed *558 of the nature and cause of the accusation." Amend. VI. In United States v. Mills, 7 Pet. 142, this was construed to mean, that the indictment must set forth the offence "with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged;" and in United States v. Cook, 17 Wall. 174, that "every ingredient of which the offence is composed must be accurately and clearly alleged." It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, "includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, — it must descend to particulars. 1 Arch. Cr. Pr. and Pl., 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.

It is a crime to steal goods and chattels; but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This, because the accused must be advised of the essential particulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of larceny. So, too, it is in some States a crime for two or more persons to conspire to cheat and defraud another out of his property; but it has been held that an indictment for such an offence must contain allegations setting forth the means proposed to be used to accomplish the purpose. This, because, to make such a purpose criminal, the conspiracy must be to cheat and defraud in a mode made criminal by statute; and as all cheating and defrauding has not been made criminal, it is necessary for the indictment to state the means proposed, in order that the court *559 may see that they are in fact illegal. State v. Parker, 43 N.H. 83; State v. Keach, 40 Vt. 118; Alderman v. The People, 4 Mich. 414; State v. Roberts, 34 Me. 32. In Maine, it is an offence for two or more to conspire with the intent unlawfully and wickedly to commit any crime punishable by imprisonment in the State prison (State v. Roberts); but we think it will hardly be claimed that an indictment would be good under this statute, which charges the object of the conspiracy to have been "unlawfully and wickedly to commit each, every, all, and singular the crimes punishable by imprisonment in the State prison." All crimes are not so punishable. Whether a particular crime be such a one or not, is a question of law. The accused has, therefore, the right to have a specification of the charge against him in this respect, in order that he may decide whether he should present his defence by motion to quash, demurrer, or plea; and the court, that it may determine whether the facts will sustain the indictment. So here, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, &c. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court, not the prosecutor. Therefore, the indictment should state the particulars, to inform the court as well as the accused. It must be made to appear — that is to say, appear from the indictment, without going further — that the acts charged will, if proved, support a conviction for the offence alleged.

But it is needless to pursue the argument further. The conclusion is irresistible, that these counts are too vague and general. They lack the certainty and precision required by the established rules of criminal pleading. It follows that they are not good and sufficient in law. They are so defective that no judgment of conviction should be pronounced upon them.

The order of the Circuit Court arresting the judgment upon the verdict is, therefore, affirmed; and the cause remanded, with instructions to discharge the defendants.

MR. JUSTICE CLIFFORD dissenting.

I concur that the judgment in this case should be arrested, but for reasons quite different from those given by the court.

*560 Power is vested in Congress to enforce by appropriate legislation the prohibition contained in the fourteenth amendment of the Constitution; and the fifth section of the Enforcement Act provides to the effect, that persons who prevent, hinder, control, or intimidate, or who attempt to prevent, hinder, control, or intimidate, any person to whom the right of suffrage is secured or guaranteed by that amendment, from exercising, or in exercising such right, by means of bribery or threats; of depriving such person of employment or occupation; or of ejecting such person from rented house, lands, or other property; or by threats of refusing to renew leases or contracts for labor; or by threats of violence to himself or family, — such person so offending shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined or imprisoned, or both, as therein provided. 16 Stat. 141.

Provision is also made, by sect. 6 of the same act, that, if two or more persons shall band or conspire together, or go in disguise, upon the public highway, or upon the premises of another, with intent to violate any provision of that act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution and laws of the United States, or because of his having exercised the same, such persons shall be deemed guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, and be further punished as therein provided.

More than one hundred persons were jointly indicted at the April Term, 1873, of the Circuit Court of the United States for the District of Louisiana, charged with offences in violation of the provisions of the Enforcement Act. By the record, it appears that the indictment contained thirty-two counts, in two series of sixteen counts each: that the first series were drawn under the fifth and sixth sections of the act; and that the second series were drawn under the seventh section of the same act; and that the latter series charged that the prisoners are guilty of murder committed by them in the act of violating some of the provisions of the two preceding sections of that act.

Eight of the persons named in the indictment appeared on *561 the 10th of June, 1874, and went to trial under the plea of not guilty, previously entered at the time of their arraignment. Three of those who went to trial — to wit, the three defendants named in the transcript — were found guilty by the jury on the first series of the counts of the indictment, and not guilty on the second series of the counts in the same indictment.

Subsequently the convicted defendants filed a motion for a new trial, which motion being overruled they filed a motion in arrest of judgment. Hearing was had upon that motion; and the opinions of the judges of the Circuit Court being opposed, the matter in difference was duly certified to this court, the question being whether the motion in arrest of judgment ought to be granted or denied.

Two only of the causes of arrest assigned in the motion will be considered in answering the questions certified: (1.) Because the matters and things set forth and charged in the several counts in question do not constitute offences against the laws of the United States, and do not come within the purview, true intent, and meaning of the Enforcement Act. (2.) Because the several counts of the indictment in question are too vague, insufficient, and uncertain to afford the accused proper notice to plead and prepare their defence, and do not set forth any offence defined by the Enforcement Act.

Four other causes of arrest were assigned; but, in the view taken of the case, it will be sufficient to examine the two causes above set forth.

Since the questions were certified into this court, the parties have been fully heard in respect to all the questions presented for decision in the transcript. Questions not pressed at the argument will not be considered; and, inasmuch as the counsel in behalf of the United States confined their arguments entirely to the thirteenth, fourteenth, and sixteenth counts of the first series in the indictment, the answers may well be limited to these counts, the others being virtually abandoned. Mere introductory allegations will be omitted as unimportant, for the reason that the questions to be answered relate to the allegations of the respective counts describing the offence.

As described in the thirteenth count, the charge is, that the *562 defendants did, at the time and place mentioned, combine, conspire, and confederate together, between and among themselves, for and with the unlawful and felonious intent and purpose one Levi Nelson and one Alexander Tillman, each of whom being then and there a citizen of the United States, of African descent, and a person of color, unlawfully and feloniously to injure, oppress, threaten, and intimidate, with the unlawful and felonious intent thereby the said persons of color, respectively, then and there to hinder and prevent in their respective and several free exercise and enjoyment of the rights, privileges, and immunities, and protection, granted and secured to them respectively as citizens of the United States and citizens of the State, by reason of their race and color; and because that they, the said persons of color, being then and there citizens of the State and of the United States, were then and there persons of African descent and race, and persons of color, and not white citizens thereof; the same being a right or privilege granted or secured to the said persons of color respectively, in common with all other good citizens of the United States, by the Federal Constitution and the laws of Congress.

Matters of law conceded, in the opinion of the court, may be assumed to be correct without argument; and, if so, then discussion is not necessary to show that every ingredient of which an offence is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested before sentence, or be reversed on a writ of error. United States v. Cook, 17 Wall. 174.

Offences created by statute, as well as offences at common law, must be accurately and clearly described in an indictment; and, if the offence cannot be so described without expanding the allegations beyond the mere words of the statute, then it is clear that the allegations of the indictment must be expanded to that extent, as it is universally true that no indictment is sufficient which does not accurately and clearly allege all the ingredients of which the offence is composed, so as to bring the accused within the true intent and meaning of the statute defining the offence. Authorities of great weight, besides those referred to by me, in the dissenting opinion just read, *563 may be found in support of that proposition. 2 East, P.C. 1124; Dord v. People, 9 Barb. 675; Ike v. State, 23 Miss. 525; State v. Eldridge, 7 Eng. 608.

Every offence consists of certain acts done or omitted under certain circumstances; and, in the indictment for the offence, it is not sufficient to charge the accused generally with having committed the offence, but all the circumstances constituting the offence must be specially set forth. Arch. Cr. Pl., 15th ed., 43.

Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens thereof; and the fourteenth amendment also provides, that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Congress may, doubtless, prohibit any violation of that provision, and may provide that any person convicted of violating the same shall be guilty of an offence, and be subject to such reasonable punishment as Congress may prescribe.

Conspiracies of the kind described in the introductory clause of the sixth section of the Enforcement Act are explicitly forbidden by the subsequent clauses of the same section; and it may be that if the indictment was for a conspiracy at common law, and was pending in a tribunal having jurisdiction of common-law offences, the indictment in its present form might be sufficient, even though it contains no definite allegation whatever of any particular overt act committed by the defendants in pursuance of the alleged conspiracy.

Decided cases may doubtless be found in which it is held that an indictment for a conspiracy, at common law, may be sustained where there is an unlawful agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means; and authorities may be referred to which support the proposition, that the indictment, if the conspiracy is well pleaded, is sufficient, even though it be not alleged that any overt act had been done in pursuance of the unlawful combination.

Suffice it to say, however, that the authorities to that effect are opposed by another class of authorities equally respectable, and even more numerous, which decide that the indictment is *564 bad unless it is alleged that some overt act was committed in pursuance of the intent and purpose of the alleged conspiracy; and in all the latter class of cases it is held, that the overt act, as well as the unlawful combination, must be clearly and accurately alleged.

Two reasons of a conclusive nature, however, may be assigned which show, beyond all doubt, that it is not necessary to enter into the inquiry which class of those decisions is correct.

1. Because the common law is not a source of jurisdiction in the circuit courts, nor in any other Federal court.

Circuit courts have no common-law jurisdiction of offences of any grade or description; and it is equally clear that the appellate jurisdiction of the Supreme Court does not extend to any case or any question, in a case not within the jurisdiction of the subordinate Federal courts. State v. Wheeling Bridge Co., 13 How. 563; United States v. Hudson et al., 7 Cranch, 32.

2. Because it is conceded that the offence described in the indictment is an offence created and defined by an act of Congress.

Indictments for offences created and defined by statute must in all cases follow the words of the statute: and, where there is no departure from that rule, the indictment is in general sufficient, except in cases where the statute is elliptical, or where, by necessary implication, other constituents are component parts of the offence; as where the words of the statute defining the offence have a compound signification, or are enlarged by what immediately precedes or follows the words describing the offence, and in the same connection. Cases of the kind do arise, as where, in the dissenting opinion in United States v. Reese et al., supra, p. 222, it was held, that the words offer to pay a capitation tax were so expanded by a succeeding clause of the same sentence that the word "offer" necessarily included readiness to perform what was offered, the provision being that the offer should be equivalent to actual performance if the offer failed to be carried into execution by the wrongful act or omission of the party to whom the offer was made.

Two offences are in fact created and defined by the sixth section of the Enforcement Act, both of which consist of a *565 conspiracy with an intent to perpetrate a forbidden act. They are alike in respect to the conspiracy; but differ very widely in respect to the act embraced in the prohibition.

1. Persons, two or more, are forbidden to band or conspire together, or go in disguise upon the public highway, or on the premises of another, with intent to violate any provision of the Enforcement Act, which is an act of twenty-three sections.

Much discussion of that clause is certainly unnecessary, as no one of the counts under consideration is founded on it, or contains any allegations describing such an offence. Such a conspiracy with intent to injure, oppress, threaten, or intimidate any person, is also forbidden by the succeeding clause of that section, if it be done with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of having exercised the same. Sufficient appears in the thirteenth count to warrant the conclusion, that the grand jury intended to charge the defendants with the second offence created and defined in the sixth section of the Enforcement Act.

Indefinite and vague as the description of the offence there defined is, it is obvious that it is greatly more so as described in the allegations of the thirteenth count. By the act of Congress, the prohibition is extended to any right or privilege granted or secured by the constitution or laws of Congress; leaving it to the pleader to specify the particular right or privilege which had been invaded, in order to give the accusation that certainty which the rules of criminal pleading everywhere require in an indictment; but the pleader in this case, overlooking any necessity for any such specification, and making no attempt to comply with the rules of criminal pleading in that regard, describes the supposed offence in terms much more vague and indefinite than those employed in the act of Congress.

Instead of specifying the particular right or privilege which had been invaded, the pleader proceeds to allege that the defendants, with all the others named in the indictment, did combine, conspire, and confederate together, with the unlawful intent and purpose the said persons of African descent and *566 persons of color then and there to injure, oppress, threaten, and intimidate, and thereby then and there to hinder and prevent them in the free exercise and enjoyment of the rights, privileges, and immunities and protection granted and secured to them as citizens of the United States and citizens of the State, without any other specification of the rights, privileges, immunities, and protection which had been violated or invaded, or which were threatened, except what follows; to wit, the same being a right or privilege granted or secured in common with all other good citizens by the constitution and laws of the United States.

Vague and indefinite allegations of the kind are not sufficient to inform the accused in a criminal prosecution of the nature and cause of the accusation against him, within the meaning of the sixth amendment of the Constitution.

Valuable rights and privileges, almost without number, are granted and secured to citizens by the constitution and laws of Congress; none of which may be, with impunity, invaded in violation of the prohibition contained in that section. Congress intended by that provision to protect citizens in the enjoyment of all such rights and privileges; but in affording such protection in the mode there provided Congress never intended to open the door to the invasion of the rule requiring certainty in criminal pleading, which for ages has been regarded as one of the great safeguards of the citizen against oppressive and groundless prosecutions.

Judge Story says the indictment must charge the time and place and nature and circumstances of the offence with clearness and certainty, so that the party may have full notice of the charge, and be able to make his defence with all reasonable knowledge and ability. 2 Story, Const., sect. 1785.

Nothing need be added to show that the fourteenth count is founded upon the same clause in the sixth section of the Enforcement Act as the thirteenth count, which will supersede the necessity of any extended remarks to explain the nature and character of the offence there created and defined. Enough has already been remarked to show that that particular clause of the section was passed to protect citizens in the free exercise and enjoyment of every right or privilege granted *567 or secured to them by the constitution and laws of Congress, and to provide for the punishment of those who band or conspire together, in the manner described, to injure, oppress, or intimidate any citizen, to prevent or hinder him from the free exercise and enjoyment of all such rights or privileges, or because of his having exercised any such right or privilege so granted or secured.

What is charged in the fourteenth count is, that the defendants did combine, conspire, and confederate the said citizens of African descent and persons of color to injure, oppress, threaten, and intimidate, with intent the said citizens thereby to prevent and hinder in the free exercise and enjoyment of the right and privilege to vote at any election to be thereafter had and held according to law by the people of the State, or by the people of the parish; they, the defendants, well knowing that the said citizens were lawfully qualified to vote at any such election thereafter to be had and held.

Confessedly, some of the defects existing in the preceding count are avoided in the count in question; as, for example, the description of the particular right or privilege of the said citizens which it was the intent of the defendants to invade is clearly alleged: but the difficulty in the count is, that it does not allege for what purpose the election or elections were to be ordered, nor when or where the elections were to be had and held. All that is alleged upon the subject is, that it was the intent of the defendants to prevent and hinder the said citizens of African descent and persons of color in the free exercise and enjoyment of the right and privilege to vote at any election thereafter to be had and held, according to law, by the people of the State, or by the people of the parish, without any other allegation whatever as to the purpose of the election, or any allegation as to the time and place when and where the election was to be had and held.

Elections thereafter to be held must mean something different from pending elections; but whether the pleader means to charge that the intent and purpose of the alleged conspiracy extended only to the next succeeding elections to be held in the State or parish, or to all future elections to be held in the State or parish during the lifetime of the parties, may admit of *568 a serious question, which cannot be easily solved by any thing contained in the allegations of the count.

Reasonable certainty, all will agree, is required in criminal pleading; and if so it must be conceded, we think, that the allegation in question fails to comply with that requirement. Accused persons, as matter of common justice, ought to have the charge against them set forth in such terms that they may readily understand the nature and character of the accusation, in order that they, when arraigned, may know what answer to make to it, and that they may not be embarrassed in conducting their defence; and the charge ought also to be laid in such terms that, if the party accused is put to trial, the verdict and judgment may be pleaded in bar of a second accusation for the same offence.

Tested by these considerations, it is quite clear that the fourteenth count is not sufficient to warrant the conviction and sentence of the accused.

Defects and imperfections of the same kind as those pointed out in the thirteenth count also exist in the sixteenth count, and of a more decided character in the latter count than in the former; conclusive proof of which will appear by a brief examination of a few of the most material allegations of the charge against the defendants. Suffice it to say, without entering into details, that the introductory allegations of the count are in all respects the same as in the thirteenth and fourteenth counts. None of the introductory allegations allege that any overt act was perpetrated in pursuance of the alleged conspiracy; but the jurors proceed to present that the unlawful and felonious intent and purpose of the defendants were to prevent and hinder the said citizens of African descent and persons of color, by the means therein described, in the free exercise and enjoyment of each, every, all, and singular the several rights and privileges granted and secured to them by the constitution and laws of the United States in common with all other good citizens, without any attempt to describe or designate any particular right or privilege which it was the purpose and intent of the defendants to invade, abridge, or deny.

Descriptive allegations in criminal pleading are required to be reasonably definite and certain, as a necessary safeguard *569 to the accused against surprise, misconception, and error in conducting his defence, and in order that the judgment in the case may be a bar to a second accusation for the same charge. Considerations of the kind are entitled to respect; but it is obvious, that, if such a description of the ingredient of an offence created and defined by an act of Congress is held to be sufficient, the indictment must become a snare to the accused; as it is scarcely possible that an allegation can be framed which would be less certain, or more at variance with the universal rule that every ingredient of the offence must be clearly and accurately described so as to bring the defendant within the true intent and meaning of the provision defining the offence. Such a vague and indefinite description of a material ingredient of the offence is not a compliance with the rules of pleading in framing an indictment. On the contrary, such an indictment is insufficient, and must be held bad on demurrer or in arrest of judgment.

Certain other causes for arresting the judgment are assigned in the record, which deny the constitutionality of the Enforcement Act; but, having come to the conclusion that the indictment is insufficient, it is not necessary to consider that question.

"The Civil Rights Cases"

United States v. Stanley

[On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the District of Kansas.]

United States v. Ryan

[In Error to the Circuit Court of the United States for the District of California.]

United States v. Nichols

[On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Western District of Missouri.]

United States v. Singleton

[On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Southern District of New York.]

Robinson and Wife v. Memphis & Charleston R. Co.

[In Error to the Circuit Court of the United States for the Western District of Tennessee.]

Harlan, J., dissents.

*5Sol. Gen. Phillips, for plaintiff, the United States.

No counsel for defendants, Stanley, Ryan, Nichols, and Singleton. Wm. M. Randolph, for plaintiffs in error, Robinson and wife. W. Y. C. Humes, for defendant in error, the Memphis & Charleston R. Co.

Bradley, J.

*4These cases are all founded on the first and second sections of the act of Congress known as the "Civil Rights Act," passed March 1, 1875, entitled "An act to protect all citizens in their civil and legal rights." 18 St. 335. Two of the cases, those against Stanley and Nichols, are indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, are, one an information, the other an indictment, for denying to individuals the privileges and accommodations of a theater, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire's theater in San Francisco; and the indictment against Singleton being for denying to another person, whose color is not stated, the full enjoyment of the accommodations of the theater known as the Grand Opera House in New York, "said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude." The case of Robinson and wife against the Memphis & Charleston Railroad Company was an action brought in the Circuit Court of the United States for the Western District of Tennessee, to recover the penalty of $500 given by the second section of the act; and the gravamen was the refusal by the conductor of the railroad company to allow the wife to ride in the ladies' car, for the reason, as stated in one of the counts, that she was a person of African descent. The jury rendered a verdict for the defendants in this case upon the merits under a charge of the court, to which a bill of exceptions was taken by the plaintiffs. The case was tried on the assumption by both parties of the validity of the act of Congress; and the principal point made by the exceptions was that the judge allowed evidence to go to the jury tending to show that the plaintiff, the wife, was an improper person, because she was in company with a young man whom he supposed to be a white man, and on that account inferred that there was some improper connection between them; and the judge charged the jury, in substance, that if this was the conductor's bona fide reason for excluding the woman from the car, they might take it into consideration on the question of the liability of the company. The case is brought here by writ of error at the suit of the plaintiffs. The cases of Stanley, Nichols, and Singleton come up on certificates of division of opinion between the judges below as to the constitutionality of the first and second sections of the act referred to; and the case of Ryan, on a writ of error to the judgment of the Circuit Court for the District of California sustaining a demurrer to the information.

It is obvious that the primary and important question in all *9the cases is the constitutionality of the law; for if the law is unconstitutional none of the prosecutions can stand.

The sections of the law referred to provide as follows:

"Section 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude."

"Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action of debt, with full costs; and shall, also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than $500 nor more than $1,000, or shall be imprisoned not less than 30 days nor more than one year: Provided, that all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any state: And provided, further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively."

Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, *10public conveyances, and theaters; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theaters, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement, as are enjoyed by white citizens; and vice versa. The second section makes it a penal offense in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section.

Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished senators, advanced while the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it according to the best lights we have.

The first section of the Fourteenth Amendment—which is the one relied on—after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states. It declares that *11"no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is state action of a particular character that is prohibited. Individual invasion of individual right is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state law and state acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction *12of their operation and effect. A quite full discussion of this aspect of the amendment may be found in U.S. v. Cruikshank, 92 U.S. 542; Virginia v. Rives, 100 U.S. 313, and Ex parte Virginia, Id. 339.

An apt illustration of this distinction may be found in some of the provisions of the original Constitution. Take the subject of contracts, for example. The Constitution prohibited the states from passing any law impairing the obligation of contracts. This did not give to Congress power to provide laws for the general enforcement of contracts; nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by state legislation might be counteracted and corrected; and this power was exercised. The remedy which Congress actually provided was that contained in the twenty-fifth section of the Judiciary Act of 1789, giving to the Supreme Court of the United States jurisdiction by writ of error to review the final decisions of state courts whenever they should sustain the validity of a state statute or authority, alleged to be repugnant to the Constitution or laws of the United States. By this means, if a state law was passed impairing the obligation of a contract, and the state tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of Congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of contracts generally, and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably Congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a state law; and, under the broad provisions of the act of March 3, 1875, giving to the circuit courts jurisdiction of all cases arising under the Constitution and laws of the United States, it is possible that such jurisdiction now exists. But under that or any other law, it must appear, as *13well by allegation as proof at the trial, that the Constitution had been violated by the action of the state legislature. Some obnoxious state law passed, or that might be passed, is necessary to be assumed in order to lay the foundation of any federal remedy in the case, and for the very sufficient reason that the constitutional prohibition is against state laws impairing the obligation of contracts.

And so in the present case, until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against state laws and acts done under state authority. Of course, legislation may and should be provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, state laws or state action of some kind adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the state legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the state without due process of law, Congress may, therefore, provide due process of law for their vindication in every case; and that, because the denial by a state to any persons of the equal protection of the laws is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizens, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the states may *14adopt or enforce, and which by the amendment they are prohibited from making or enforcing, or such acts and proceedings as the states may commit or take, and which by the amendment they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

An inspection of the law shows that is makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the states. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offenses, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the states; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in states which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws as to those which arise in states that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the state or its authorities.

If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the states may deprive persons of life, liberty, and property without due process of law, (and the amendment itself does suppose this,) why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theaters. The truth is that the implication of a power to legislate in this manner is based *15upon the assumption that if the states are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such state legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.

We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be constitutional. That section declares

"that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United State, or of any state, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars. In Ex parte Virginia, 100 U.S. 339, it was held that an indictment against a state officer under this section for excluding persons of color from the jury list is sustainable. But a moment's attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created by the law, and the first part of the section is aimed at certain disqualifying laws, namely, those which make mere race or color a disqualification; and the second clause is directed against those who, assuming to use the authority of the state government, carry into effect such a rule of disqualification. In the Virginia case, the state, through its officer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute-book of the state actually laid down any such rule of disqualification or not, the state, through its officer, enforced such a rule; and it is against such state action, through its officers and agents, that the last clause of the section is directed.*16 This aspect of the law was deemed sufficient to divest it of any unconstitutional character, and makes it differ widely from the first and second sections of the same act which we are now considering.

These sections, in the objectionable features before referred to, are different also from the law ordinarily called the "Civil Rights Bill," originally passed April 9, 1866, and re-enacted with some modifications in sections 16, 17, 18, of the enforcement act, passed May 31, 1870. That law, as re-enacted, after declaring that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding, proceeds to enact that any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any state or territory to the deprivation of any rights secured or protected by the preceding section, (above quoted,) or to different punishment, pains, or penalties, on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and subject to fine and imprisonment as specified in the act. This law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to-wit, the words "any law, statute, ordinance, regulation, or custom to the contrary not-withstanding," which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to state laws by making the penalty apply only to those who should subject *17 parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any state or territory, thus preserving the corrective character of the legislation. Rev. St. §§ 1977, 1978, 1979, 5510. The civil rights bill here referred to is analogous in its character to what a law would have been under the original constitution, declaring that the validity of contracts should not be impaired, and that if any person bound by a contract should refuse to comply with it under color or pretense that it had been rendered void or invalid by a state law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defense.

In this connection it is proper to state that civil rights, such as are guarantied by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and to sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow-citizen; but unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment; and amenable therefore to the laws of the state where the wrongful acts are committed. Hence, in all those cases where the constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offenses, but abrogation and *18denial of rights, which it denounces, and for which it clothes the congress with power to provide a remedy. This abrogation and denial of rights, for which the states alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some state law or state authority for its excuse and perpetration.

Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the states, as in the regulation of commerce with foreign nations, among the several states, and with the Indian tribes, the coining of money, the establishment of post-offices and post-roads, the declaring of war, etc. In these cases congress has power to pass laws for regulating the subjects specified, in every detail, and the conduct and transactions of individuals respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular state legislation or state action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of state officers.

If the principles of interpretation which we have laid down are correct, as we deem them to be—and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case of U.S. v. Harris, decided at the last term of this court [1 Sup. Ct. Rep. 601]—it is clear that the law in question cannot be sustained by any grant of legislative power made to congress by the Fourteenth Amendment. That amendment prohibits the states from denying to any person the equal protection of the laws, and declares that Congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse state legislation on the subject, *19declares that all persons shall be entitled to equal accommodation and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces state legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed Congress with plenary power over the whole subject, is not now the question. What we have to decide it, whether such plenary power has been conferred upon Congress by the Fourteenth Amendment, and, in our judgment, it has not.

We have discussed the question presented by the law on the assumption that a right to enjoy equal accommodations and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen which no state can abridge or interfere with. Whether it is such a right or not is a different question, which, in the view we have taken of the validity of the law on the ground already stated, it is not necessary to examine.

We have also discussed the validity of the law in reference to cases arising in the states only; and not in reference to cases arising in the territories or the District of Columbia, which are subject to the plenary legislation of Congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the territories and the district is not a question for consideration in the cases before us; they all being cases arising within the limits of states. And whether Congress, in the exercise of its power to regulate commerce among the several states, might or might not pass a law regulating rights in public conveyances passing from one state to another, is also a question which is not now before us, as the sections in question are not conceived in any such view.

*20But the power of Congress to adopt direct and primary, as distinguished from corrective, legislation on the subject in hand, is sought, in the second place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares

"that neither slavery, not involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction;"

and it gives Congress power to enforce the amendment by appropriate legislation.

This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.

It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the Thirteenth Amendment may be regarded as nullifying all state laws which establish or uphold slavery. But is has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States; and upon this assumption it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of public amusement; the argument being that the denial of such equal accommodations and privileges is in itself a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that that *21Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery, with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theater, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the Thirteenth Amendment.

In a very able and learned presentation of the cognate question as to the extent of the rights, privileges, and immunities of citizens which cannot rightfully be abridged by state laws under the Fourteenth Amendment made in a former case, a long list of burdens and disabilities of a servile character, incident to feudal vassalage in France, and which were abolished by the decrees of the national assembly, was presented for the purpose of showing that all inequalities and observances exacted by one man from another, were servitudes or badges of slavery, which a great nation, in its effort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom which had the force of law, and or by long custom which had the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the Fourteenth, no less than to the Thirteenth, Amendment; nor any greater doubt that Congress has adequate power to forbid any such servitude from being exacted.

But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theater, of its accommodations and privileges to an individual, even through the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge or either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the Fourteenth Amendment, is another question. But what has it to do with the question of slavery? It may be that by the Black Code, (as it was called,) in the times when slavery prevailed, the proprietors of inns and public *22conveyances were forbidden to receive persons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party's legal right as a citizen, and amenable to the prohibitions of the Fourteenth Amendment.

The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offenses. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible from; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property, as is enjoyed by white citizens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it afterwards received from the Fourteenth Amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for purpose of showing that at that time (in 1866) Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.

*23We must not forget that the province and scope of the Thirteenth and Fourteenth Amendments are different: the former simply abolished slavery: the latter prohibited the states from abridging the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one, it may not have power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities which have the effect to abridge any deprive them of life, liberty, or property without due process of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not; under the Fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against state regulations or proceedings.

The only question under the present head, therefore, is, whether the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, by and individual, and without any sanction or support from any state law or regulation, does inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this country? Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse-stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful *24avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not to the prohibitions of the Fourteenth when not involving the idea of any subjection of one man of another. The Thirteenth Amendment has respect, not to distinctions of race, or class, or color, but to slavery. The Fourteenth Amendment extends its protection to races and classes, and prohibits any state legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws.

Now, conceding, for the sake of the argument, that the admission to an inn, a public conveyance, or a place of public amusement, on equal terms with all other citizens, is the right of every man and all classes of men, is it any more than one of those rights which the states by the Fourteenth Amendment are forbidden to deny to any person? and is the Constitution violated until the denial of the right has some state sanction or authority? Can the act of a mere individual, the owner of the inn, the public conveyance, or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears?

After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the state; or, if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of state laws, or state action, prohibited by the Fourteenth Amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in *25other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the states, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discriminations, amenable to the prohibitions of the Fourteenth Amendment, Congress has full power to afford a remedy under that amendment and in accordance with it.

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty, and property the same as white citizens; yet no one, at that time, thought that it was any invasion of their personal status as freemen because they were not admitted to all the privileges enjoyed by white citizens, or because they were subjected to discriminations in the enjoyment of accommodations in inns, public conveyances, and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment, (which merely abolishes slavery,) but by force of the Fourteenth and Fifteenth Amendments.

On the whole, we are of opinion that no countenance of authority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendment of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several states is concerned.

This conclusion disposes of the cases not under consideration. In the cases of U.S. v. Ryan, and of Robinson v. Memphis & C.R. *26 Co., the judgments must be affirmed. In the other cases, the answer to be given will be, that the first and second sections of the act of Congress of March 1, 1875, entitled "An act to protect all citizens in their civil and legal rights," are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered.

Harlan, J., dissenting.

The opinion in these cases proceeds, as it seems to me, upon grounds entirely too narrow and artificial. The substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. "It is not the words of the law but the internal sense of it that makes the law. The letter of the law is the body; the sense and reason of the law is the soul." Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.

The purpose of the first section of the act of Congress of March 1, 1875, was to prevent race discrimination. It does not assume to define the general conditions and limitations under the general conditions and limitations under which inns, public conveyances, and places of public amusement may be conducted, but only declares that such conditions and limitations, whatever they may be, shall not be applied, by way of *27discrimination, on account of race, color, or previous condition of servitude. The second section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen that equality of right given by the first section, except for reasons by law applicable to citizens of every race or color, and regardless of any previous condition of servitude.

There seems to be no substantial difference between my brethren and myself as to what was the purpose of Congress; for they say that the essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theaters, but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. The effect of the statute, the court says, is that colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white person, and vice versa.

The court adjudges that Congress is without power, under either the Thirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second sections of the statute are, in all their parts, unconstitutional and void.

Whether the legislative department of the government has transcended the limits of its constitutional powers, “is at all times,” said this court in Fletcher v. Peck, 6 Cr. 128, “is a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. . . . The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” More recently in Sinking Fund Cases, 99 U.S. 718, we said: “It is our duty when required in the regular course of judicial proceedings, to declare and act of Congress void if not within the legislative power of the United States, but this declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule."

*28Before considering the particular language and scope of these amendments it will be proper to recall the relations which, prior to their adoption, subsisted between the national government and the institution of slavery, as indicated by the provisions of the Constitution, the legislation of Congress, and the decisions of this court. In this mode we may obtain keys with which to open the mind of the people, and discover the thought intended to be expressed.

In section 2 of article 4 of the Constitution it was provided that

"no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

Under the authority of that clause Congress passed the Fugitive Slave Law of 1793, establishing the mode for the recovery of a fugitive slave, and prescribing a penalty against any person knowingly and willingly obstructing or hindering the master, his agent or attorney, in seizing, arresting, and recovering the fugitive, or who should rescue the fugitive from him, or who should harbor or conceal the slave after notice that he was a fugitive.

In Prigg v. Com. 16 Pet 539, this court had occasion to define the powers and duties of congress in reference to fugitives from labor. Speaking by Mr. Justice Story, the court laid down these propositions:

That a clause of the Constitution conferring a right should not be so construed as to make it shadowy, or unsubstantial, or leave the citizen without a remedial power adequate for its protection, when another mode, equally accordant with the words and the sense in which they were used, would enforce and protect the right so granted;

that Congress is not restricted to legislation for the *29exertion of its powers expressly granted; but, for the protection of rights guarantied by the Constitution, it may employ, through legislation, such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed;

that the Constitution recognized the master's right of property in his fugitive slave, and, as incidental thereto, the right of seizing and recovering him, regardless of any state law, or regulation, or local custom whatsoever; and

that the right of the master to have his slave, so escaping, delivered up on claim, being guarantied by the Constitution, the fair implication was that the national government was clothed with appropriate authority and functions to enforce it.

The court said:

"The fundamental principle, applicable to all cases of this sort, would seem to be that when the end is required the means are given, and when the duty is enjoined the ability to perform it is contemplated to exist on the part of the functionary to whom it is intrusted."

Again:

"It would be a strange anomaly and forced construction to suppose that the national government meant to rely for the due fulfillment of its own proper duties, and the rights which it intended to secure, upon state legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union should be confided to state sovereignty, which could not rightfully act beyond its own territorial limits."

The act of 1793 was, upon these grounds, adjudged to be a constitutional exercise of the powers of Congress.

It is to be observed, from the report of Prigg's Case, that Pennsylvania, by her attorney general, pressed the argument that the obligation to surrender fugitive slaves was on the states and for the states, subject to the restriction that they should not pass laws or establish regulations liberating such fugitives; that the Constitution did not take from the states the right to determine the status of all persons within their respective jurisdictions; that it was for the state in which the alleged fugitive was found to determine, through her courts, or in such modes as she prescribed, whether the person arrested was, in fact, a freeman or a fugitive slave; that the sole power *30of the general government in the premises was, by judicial instrumentality, to restrain and correct, not to forbid and prevent in the absence of hostile state action; and that, for the general government to assume primary authority to legislate on the subject of fugitive slaves, to the exclusion of the state, would be a dangerous encroachment on state sovereignty. But to such suggestions this court turned a deaf ear, and adjudged that primary legislation by Congress to enforce the master's right was authorized by the Constitution.We next come to the Fugitive Slave Act of 1850, the constitutionality of which rested, as did that of 1793, solely upon the implied power of Congress to enforce the master's rights. The provisions of that act were far in advance of previous legislation. They placed at the disposal of the master seeking to recover his fugitive slave, substantially, the whole power of the nation. It invested commissioners, appointed under the act, with power to summon the posse comitatus for the enforcement of its provisions, and commanded "all good citizens" to assist in its prompt and efficient execution whenever their services were required as part of the posse comitatus. Without going into the details of that act, it is sufficient to say that Congress omitted from it nothing which the utmost ingenuity could suggest as essential to the successful enforcement of the master's claim to recover his fugitive slave. And this court, in Ableman v. Booth, 21 How. 526, adjudged it to be, "in all of its provisions, fully authorized by the Constitution of the United States."

The only other decision prior to the adoption of the recent amendments, to which reference will be made, is Dred Scott v. Sandford, 19 How. 393. That suit was instituted in a circuit court of the United States by Dred Scott, claiming to be a citizen of Missouri, the defendant being a citizen of another state. Its object was to assert the title of himself and family to freedom. The defendant pleaded in abatement to the jurisdiction of the court that Scott—being of African descent, whose ancestors, of pure African blood, were brought into this country, and sold as slaves—was not a citizen. The only matter in issue, said the court, was whether the descendants of slaves so imported*31 and sold, when they should be emancipated, or who were born of parents who had become free before their birth, are citizens of a state in the sense in which the word "citizen" is used in the Constitution of the United States.

In determining that question the court instituted an inquiry as to who were citizens of the several states at the adoption of the constitution, and who, at that time, were recognized as the people whose rights and liberties had been violated by the British government. The result was a declaration by this court, speaking through Chief Justice Taney, that the legislation and histories of the times, and the language used in the Declaration of Independence, showed

"that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used that instrument:"

that

"they had for more than a century before been regarded as beings of an inferior race, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit;"

that he was

"bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it;"

and that

"this opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without for a moment doubting the correctness of this opinion."

The judgment of the court was that the words "people of the United States" and "citizens" meant the same thing, both describing

"the political body who, according to our republican institutions, form the sovereignty and hold the power and conduct the government through their representatives;"

that

"they are what we familiarly call the "sovereign people," and *32every citizen is one of this people and a constituent member of this sovereignty;"

but that the class of persons described in the plea in abatement did not compose a portion of this people, were not

"included, and were not intended to be included, under the word "citizens" in the Constitution;"

that, therefore, they could

"claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States;"

that,

"on the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them."

Such were relations which, prior to the adoption of the Thirteenth Amendment, existed between the government, whether national or state, and the descendants, whether free or in bondage, of those of African blood who had been imported into this country and sold as slaves.

The first section thereof provides that

"neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Its second section declares that

"Congress shall have power to enforce this article by appropriate legislation."

This amendment was followed by the Civil Rights Act of April 9, 1866, which, among other things, provided that

"all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." 14 St. 27.

The power of Congress, in this mode, to elevate the race thus liberated to the plane of national citizenship, was maintained, by the supporters of the act of 1866, to be as full and complete as its power, by general statute, to make the children, being of full age, of persons naturalized in this country, citizens of the United States without going through the process of naturalization. The act of 1866, in this respect, was also likened to that of 1843, in which Congress declared

"that the Stockbridge tribe of Indians, and each and every one of them, shall be deemed to be, and are hereby declared to be, citizens of the United States to *33all intent and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens, and shall in all respects be subject to the laws of the United States."

If the act of 1866 was valid, as conferring national citizenship upon all embraced by its terms, then the colored race, liberated by the Thirteenth Amendment, became citizens of the United States prior to the adoption of the Fourteenth Amendment. But, in the view which I take of the present case, it is not necessary to examine this question.

The terms of the Thirteenth Amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States. No race, as such, can be excluded from the benefits or rights thereby conferred. Yet it is historically true that amendment was suggested by the condition, in this country, of that race which had been declared by this court to have had, according to the opinion entertained by the most civilized portion of the white race at the time of the adoption of the constitution, "no rights which the white man was bound to respect," none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in a peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an act of Congress to aid, by their strong right arms, in saving from overthrow a government which, theretofore, by all of its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them.

These are the circumstances under which the Thirteenth Amendment was proposed for adoption. They are now recalled only that we may better understand what was in the minds of the people when that amendment was being considered, and what were the mischiefs to be remedied, and the grievances to be redressed.

We have seen that the power of Congress by legislation, to enforce the master's right to have his slave delivered up on claim was implied from the recognition and guaranty of that right in the national constitution. But the power conferred by the Thirteenth Amendment does not rest upon implication or *34inference. Those who framed it were not ignorant of the discussion, covering many years of the country's history, as to the constitutional power of Congress to enact the fugitive slave laws of 1793 and 1850. When, therefore, it was determined by a change in the fundamental law, to uproot the institution of slavery wherever it existed in this land, and to establish universal freedom, there was a fixed purpose to place the power of Congress in the premises beyond the possibility of doubt. Therefore, ex industria, the power to enforce the Thirteenth Amendment, by appropriate legislation, was expressly granted. Legislation for that purpose, it is conceded, may be direct and primary. But to what specific ends may it be directed? This court has uniformly held that the national government has the power, whether expressly given or not, to secure and protect rights conferred or guarantied by the constitution. U.S. v. Reese, 92 U.S. 214; Strauder v. West Virginia, 100 U.S. 303. That doctrine ought not now to be abandoned, when the inquiry is not as to an implied power to protect the master's rights, but what may Congress do, under powers expressly granted, for the protection of freedom, and the rights necessarily inhering in a state of freedom.

The Thirteenth Amendment, my brethren concede, did something more than to prohibit slavery as an institution, resting upon distinctions of race, and upheld by positive law. They admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several states for such protection, in their civil rights, necessarily growing out of freedom, as those states, in their discretion, choose to provide? Were the states, against whose solemn protest the institution was destroyed, to be left perfectly free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights that inhere in a state of freedom? *35Had the Thirteenth Amendment stopped with the sweeping declaration, in its first section, against the existence of slavery and involuntary servitude, except for crime, Congress would have had the power, by implication, according to the doctrines of Prigg v. Com., repeated in Strauder v. West Virginia, to protect the freedom thus established, and consequently to secure the enjoyment of such civil rights as were fundamental in freedom. But that it can exert its authority to that extent is now made clear, and was intended to be made clear, by the express grant of power contained in the second section of that amendment.

That there are burdens and disabilities which constitute badges of slavery and servitude, and that the express power delegated to Congress to enforce, by appropriate legislation, the Thirteenth Amendment, may be exerted by legislation of a direct and primary character, for the eradication, not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the very foundation of the Civil Rights Act of 1866. Whether that act was fully authorized by the Thirteenth Amendment alone, without the support which it afterwards received from the Fourteenth Amendment, after the adoption of which it was re-enacted with some additions, the court, in its opinion, says it is unnecessary to inquire. But I submit, with all respect to my brethren, that its constitutionality is conclusively shown by other portions of their opinion. It is expressly conceded by them that the Thirteenth Amendment established freedom; that there are burdens and disabilities, the necessary incidents of slavery, which constitute its substance and visible form; that Congress, by the act of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to remove certain burdens and disabilities, the necessary incidents of slavery, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property as is enjoyed by white citizens; that under the Thirteenth Amendment Congress has to do with slavery and *36its incidents; and that legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not. These propositions being conceded, it is impossible, as it seems to me, to question the constitutional validity of the Civil Rights Act of 1866. I do not contend that the Thirteenth Amendment invests Congress with authority, by legislation, to regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several states. But I do hold that since slavery, as the court has repeatedly declared, was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment, by appropriate legislation, may enact laws to protect that people against the deprivation, on account of their race, of any civil rights enjoyed by other freemen in the same state; and such legislation may be of a direct and primary character, operating upon states, their officers and agents, and also upon, at least, such individuals and corporations as exercise public functions and wield power and authority under the state.

By way of testing the correctness of this position, let us suppose that, prior to the adoption of the Fourteenth Amendment, a state had passed a statute denying to freemen of African descent, resident within its limits, the same rights which were accorded to white persons, of making or enforcing contracts, or of inheriting, purchasing, leasing, selling, and conveying property; or a statute subjecting colored people to severer punishment for particular offenses than was prescribed for white persons, or excluding that race from the benefit of the laws exempting homesteads from execution. Recall the legislation of 1865–66 in some of the states, of which this court, in the Slaughter-*37house Cases, said that it imposed upon the colored race onerous disabilities and burdens; curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; forbade them to appear in the towns in any other character than menial servants; required them to reside on and cultivate the soil, without the right to purchase or own it; excluded them from many occupations of gain; and denied them the privilege of giving testimony in the courts where a white man was a party. 16 Wall. 57. Can there by any doubt that all such legislation might have been reached by direct legislation upon the part of Congress under its express power to enforce the Thirteenth Amendment? Would any court have hesitated to declare that such legislation imposed badges of servitude in conflict with the civil freedom ordained by that amendment? That it would have been also in conflict with the Fourteenth Amendment, because inconsistent with the fundamental rights of American citizenship, does not prove that it would have been consistent with the Thirteenth Amendment.

What has been said is sufficient to show that the power of Congress under the Thirteenth Amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent at least of protecting the race, so liberated, against discrimination, in respect of legal rights belonging to freemen, where such discrimination is based upon race.

It remains now to inquire what are the legal rights of colored persons in respect of the accommodations, privileges, and facilities of public conveyances, inns, and places of public amusement.

1. As to public conveyances on land and water. In New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 382, this court, speaking by Mr. Justice Nelson, said that a common carrier is "in the exercise of a sort of public office and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned." To the same effect is Munn v. Illinois, 94 U.S. 113. In Olcott v. Sup'rs, 16 Wall. 694, it was ruled that *38railroads are public highways, established, by authority of the state, for the public use; that they are none the less public highways because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the conveyance of the public; that no matter who is the agent, and what is the agency, the function performed is that of the state; that although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used; that upon these grounds alone have the courts sustained the investiture of railroad corporations with the state's right of eminent domain, or the right of municipal corporations, under legislative authority, to assess, levy, and collect taxes to aid in the construction of railroads. So in Town of Queensbury v. Culver, 19 Wall. 91, it was said that a municipal subscription of railroad stock was in aid of the construction and maintenance of a public highway and for the promotion of a public use. Again, in Township of Pine Grove v. Talcott, 19 Wall. 676: "Though the corporation [railroad] was private, its work was public; as much so as if it were to be constructed by the state." To the like effect are numerous adjudications in this and the state courts with which the profession is familiar. The Supreme Judicial Court of Massachusetts, in Inhabitants of Worcester v. Western R. Corp. 4 Metc. 566, said, in reference to a certain railroad:

"The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement. * * * It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation; but it is in trust for the public."

In Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, the court, referring to an act repealing the charter of a railroad, and under which the state took possession of the road, said, speaking by Black, J.:

"It is public highway, solemnly devoted to public use. When the lands were taken it was for such use, or they could not have been taken at all. * * * Railroads established *39upon land taken by the right of eminent domain by authority of the commonwealth, created by her laws as thoroughfares for commerce, are her highways. No corporation has property in them, though it may have franchises annexed to and exercisable within them."

In many courts it has been held that because of the public interest in such a corporation the land of a railroad company cannot be levied on and sold under execution by a creditor. The sum of the adjudged cases is that a railroad corporation is a governmental agency, created primarily for public purposes, and subject to be controlled for the public benefit. It is upon that ground that the state, when unfettered by contract, may regulate, in its discretion, the rates of fares of passengers and freight. And upon this ground, too, the state may regulate the entire management of railroads in all matters affecting the convenience and safety of the public; as, for example, by regulating speed, compelling stops of prescribed length at stations, and prohibiting discriminations and favoritism. If the corporation neglect or refuse to discharge its duties to the public, it may be coerced to do so by appropriate proceedings in the name or in behalf of the state.

Such being the relations these corporations hold to the public, it would seem that the right of a colored person to use an improved public highway, upon the terms accorded to freemen of other races, is as fundamental in the state of freedom, established in this country, as are any of the rights which my brethren concede to be so far fundamental as to be deemed the essence of civil freedom. "Personal liberty consists," says Blackstone, "in the power of locomotion, of changing situation, or removing one's person to whatever place one's own inclination may direct, without restraint, unless by due course of law." But of what value is this right of locomotion, if it may be logged by such burdens as Congress intended by the act of 1875 to remove? They are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained, except upon the assumption that there is still, in this land of universal liberty, a class which may yet be discriminated against, even in respect of rights of a character *40so essential and so supreme, that, deprived of their enjoyment, in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most necessary means of existence; and all this solely because they belong to a particular race which the nation has liberated. The Thirteenth Amendment alone obliterated the race line, so far as all rights fundamental in a state of freedom are concerned.

As to inns. The same general observations which have been made as to railroads are applicable to inns. The word "inn" has a technical legal signification. It means, in the act of 1875, just what it meant at common law. A mere private boardinghouse is not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges of a common innkeeper. "To constitute one an innkeeper, within the legal force of that term, he must keep a house of entertainment or lodging for all travelers or wayfarers who might choose to accept the same, being of good character or conduct." Redf. Carr. § 575. Says Judge Story:

"An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants. An innkeeper is bound to take in all travelers and wayfaring person, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence. * * * If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor. * * * They [carriers of passengers] are no more at liberty to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations to a guest." Story, Bailm §§ 475, 476.

Said Mr. Justice Coleridge, in Rex v. Ivens, 7 Car. & P. 213, (32 E. C. L. 495:)

"An indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house; and either the price of the guest's entertainment being tendered to him, or such circumstances occurring as will dispense with that *41tender. This law is founded in good sense. The innkeeper is not to select his guests. He has no right to say to one, you shall come to my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travelers and supplying them with that they want."

These authorities are sufficient to show a keeper of an inn is in the exercise of a quasi public employment. The law gives him special privileges, and he is charged with certain duties and responsibilities to the public. The public nature of his employment forbids him from discriminating against any person asking admission as a guest on account of the race or color of that person.

3. As to places of public amusement. It may be argued that the managers of such places have no duties to perform with which the public are, in any legal sense, concerned, or with which the public have any right to interfere; and that the exclusion of a black man from a place of public amusement on account of his race, or the denial to him, on that ground, of equal accommodations at such places, violates no legal right for the vindication of which he may invoke the aid of the courts. My answer to that argument is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction. A license from the public to establish a place of public amusement, imports, in law, equality of right, at such places, among all the members of that public. This must be so, unless it be—which I deny—that the common municipal government of all the people may, in the exertion of its powers, conferred for the benefit of all, discriminate or authorize discrimination against a particular race, solely because of its former condition of servitude.

I also submit whether it can be said—in view of the doctrines of this court as announced in *42Munn v. Illinois, U.S. 123, and reaffirmed in Peik v. Chicago & N. W. Ry. Co. 94 U.S. 178—that the management of places of public amusement is a purely private matter, with which government has no rightful concern. In the Munn Case the question was whether the state of Illinois could fix, by law, the maximum of charges for the storage of grain in certain warehouses in that state—the private property of individual citizens. After quoting a remark attributed to Lord Chief Justice Hale, to the effect that when private property is "affected with a public interest it ceases to be juris privati only," the court says:

"Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control."

The doctrines of Munn v. Illinois have never been modified by this court, and I am justified, upon the authority of that case, in saying that places of public amusement, conducted under the authority of the law, are clothed with a public interest, because used in a manner to make them of public consequence and to affect the community at large." The law may therefore regulate, to some extent, the mode in which they shall be conducted, and consequently the public have rights in respect of such places which may be vindicated by the law. It is consequently not a matter purely of private concern.

Congress has not, in these matters, entered the domain of state control and supervision. It does not assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall by conducted or managed. It simply declares in effect that since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the legal rights in the accommodations *43and advantages of public conveyances, inns, and places of public amusement.

I am of opinion that such discrimination is a badge of servitude, the imposition of which Congress may prevent under its power, through appropriate legislation, to enforce the Thirteenth Amendment; and consequently, without reference to its enlarged power under the Fourteenth Amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the Constitution.

It remains now to consider these cases with reference to the power Congress has possessed since the adoption of the Fourteenth Amendment. Much has been said as to the power of Congress under the Thirteenth Amendment is applicable to this branch of the discussion, and will not be repeated. 

Before the adoption of the recent amendments it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a state, or even of the United States, with the rights and privileges guarantied to citizens by the national constitution; further, that one might have all the rights and privileges of a citizen of a state without being a citizen in the sense in which that word was used in the national constitution, and without being entitled to the privileges and immunities of citizens of the several states. Still further, between the adoption of the Thirteenth Amendment and the proposal by Congress of the Fourteenth Amendment, on June 16, 1866, the statute-books of several of the states, as we have seen, had become loaded down with enactments which, under the guise of apprentice, vagrant, and contract regulations, sought to keep the colored race in a condition, practically, of servitude. It was openly announced that whatever rights persons of that race might have as freemen, under the guaranties of the national Constitution, they could not become citizens of a state, with the rights belonging to citizens, except by the consent of such state; consequently, that their civil rights, as citizens of the state, depended entirely upon state legislation. To meet this new peril to the black race, that the *44purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of Congress, the Fourteenth Amendment was proposed for adoption.

Remembering that this court, in the Slaughter-house Cases, declared that the one pervading purpose found in all the recent amendments, lying at the foundation of each, and without which none of them would have been suggested, was

"the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him;"

that each amendment was addressed primarily to the grievances of that race—let us proceed to consider the language of the Fourteenth Amendment. Its first and fifth sections are in these words:

"Section 1. 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

* * *

"Sec. 5. That Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

It was adjudged in Strauder v. West Virginia and Ex parte Virginia, 100 U.S. 307, 345, and my brethren concede, that positive rights and privileges were intended to be secured, and are in fact secured, by the Fourteenth Amendment.

But when, under what circumstances, and to what extent may Congress, by means of legislation, exert its power to enforce the provisions of this amendment? The logic of the opinion of the majority of the court—the foundation upon which its whole reasoning seems to rest—is that the general government cannot, in advance of hostile state laws or hostile state *45proceedings, actively interfere for the protection of any of the rights, privileges, and immunities secured by the Fourteenth Amendment. It is said that such rights, privileges, and immunities are secured by way of prohibition against state laws and state proceedings affecting such rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; also, that congressional legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.

In illustration of its position, the court refers to the clause of the Constitution forbidding the passage by a state of any law impairing the obligation of contracts. The clause does not, I submit, furnish a proper illustration of the scope and effect of the fifth section of the Fourteenth Amendment. No express power is given Congress to enforce, by primary direct legislation, the prohibition upon state laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumerated powers of Congress, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. And, as heretofore shown, there is also, by necessary implication, power in Congress, by legislation, to protect a right derived from the national Constitution. But a prohibition upon a state is not a power in Congress or in the national government. It is simply a denial of power to the state. And the only mode in which the inhibition upon state laws impairing the obligation of contracts can be enforced, is, indirectly, through the courts, in suits where the parties raise some question as to the constitutional validity of such laws. The judicial power of the United States extends to such suits, for the reason that they are suits arising under the Constitution. The Fourteenth Amendment presents the first instance in our history of the investiture of Congress with affirmative power, by legislation, to enforce an express prohibition upon the states. It is not said that the judicial power of the nation may be exerted for the enforcement of that amendment. No enlargement of the judicial power was required, for it is clear *46that had the fifth section of the Fourteenth Amendment been entirely omitted, the judiciary could have stricken down all state laws and nullified all state proceedings in hostility to rights and privileges secured or recognized by that amendment. The power given is, in terms, by congressional legislation, to enforce the provisions of the amendment.

The assumption that this amendment consists wholly of prohibitions upon state laws and state proceedings in hostility to its provisions, is unauthorized by its language. The first clause of the first section—"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"—is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted, as well citizenship of the United States, as citizenship of the state in which they respectively resided. It introduced all of that race, whose ancestors had been imported and sold as slaves, at once, into the political community known as the "People of the United States." They became, instantly, citizens of the United States, and of their respective states. Further, they were brought, by this supreme act of the nation, within the direct operation of that provision of the Constitution which declares that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Article 4, §2.

The citizenship thus acquired by that race, in virtue of an affirmative grant by the nation, may be protected, not alone by the judicial branch of the government, but by congressional legislation of a primary direct character; this, because the power of Congress is not restricted to the enforcement of prohibitions upon state laws or state action. It is, in terms distinct and positive, to enforce "the provisions or this article" of amendment; not simply those of a prohibitive character, but the provisions—all of the provisions—affirmative and prohibitive, of the amendment. It is, therefore, a grave misconception to suppose that the fifth section of the amendment has reference exclusively to express prohibitions upon state laws or state action. If any right was created by that amendment, the *47grant of power, through appropriate legislation, to enforce its provisions authorizes Congress, by means of legislation operating throughout the entire Union, to guard, secure, and protect that right.

It is, therefore, an essential inquiry what, if any, right, privilege, or immunity was given by the nation to colored persons when they were made citizens of the state in which they reside? Did the national grant of state citizenship to that race, of its own force, invest them with any rights, privileges, and immunities whatever? That they became entitled, upon the adoption of the Fourteenth Amendment, "to all privileges and immunities of citizens in the several states," within the meaning of section 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which, by that clause of the Constitution, they became entitled? To this it may be answered, generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free government, "common to the citizens in the latter states under their constitutions and laws by virtue of their being citizens." Of that provision it has been said, with the approval of this court, that no other one in the Constitution has tended so strongly to constitute the citizens of the United States one people. Ward v. Maryland, 12 Wall. 430; Corfield v. Coryell, 4 Wash. C. C. 371; Paul v. Virginia, 8 Wall. 180; Slaughter-house Cases, 16 Wall. 77.

Although this court has wisely forborne any attempt, by a comprehensive definition, to indicate all the privileges and immunities to which the citizens of each state are entitled of right to enjoy in the several state, I hazard nothing, in view of former adjudications, in saying that no state can sustain her denial to colored citizens of other states, while within her limits, of privileges or immunities, fundamental in republican citizenship, upon the ground that she accords such privileges and immunities only to hear white citizens and withholds them from her colored citizens. The colored citizens of other states, within the jurisdiction of that state, could claim, under the Constitution, every privilege and immunity *48which that state secures to her white citizens. Otherwise, it would be in the power of any state, by discriminating class legislation against its own citizens of a particular race or color, to withhold from citizens of other states, belonging to that proscribed race, when within her limits, privileges and immunities of the character regarded by all courts as fundamental in citizenship; and that, too, when the constitutional guaranty is that the citizens of each state shall be entitled to "all privileges and immunities of citizens of the several states." No state may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other states, of whatever race, to enjoy in that state all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, being in the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter state. It is not to be supposed that any one will controvert this proposition.

But what was secured to colored citizens of the United States—as between them and their respective states—by the grant to them of state citizenship? With what rights, privileges, or immunities did this grant from the nation invest them? There is one, if there be no others—exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same state. That, surely, is their constitutional privilege when within the jurisdiction of other states. And such must be their constitutional right, in their own state, unless the recent amendments be "splendid baubles," thrown out to delude those who deserved fair and generous treatment at the hands of the nation. Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same state. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the state, or its officers, or by individuals, or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude. In U.S. v. Cruikshank, 92 U.S. 555, it was said that "the equality *49of rights of citizens is a principle of republicanism." And in Ex parte Virginia, 100 U.S. 344, the emphatic language of this court is that

"one great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the states."

So, in Strauder v. West Virginia, Id. 306, the court, alluding to the Fourteenth Amendment, said:

"This is one of a series of constitutional provisions having a common purpose, namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy."

Again, in Neal v. Delaware, 103 U.S. 386, it was ruled that this amendment was designed, primarily, "to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons."

The language of this court with reference to the Fifteenth Amendment, adds to the force of this view. In U.S. v. Cruikshank it was said:

"In U.S. v. Reese, 92 U.S. 214, we held that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, etc., is. The right to vote in the states comes from the states; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been."

Here, in language at once clear and forcible, is stated the principle for which I contend. It can hardly be claimed that exemption from race discrimination, in respect of civil rights, against those to whom state citizenship was granted by the *50nation, is any less for the colored race a new constitutional right, derived from and secured by the national Constitution, than is exemption from such discrimination in the exercise of the elective franchise. It cannot be that the latter is an attribute of national citizenship, while the other is not essential in national citizenship, or fundamental in state citizenship.

If, then, exemption from discrimination in respect of civil rights is a new constitutional right, secured by the grant of state constitutional right, secured by the grant of state citizenship to colored citizens of the United States, why may not the nation, by means of its own legislation of a primary direct character, guard, protect, and enforce that right? It is a right and privilege which the nation conferred. It did not come from the states in which those colored citizens reside. It has been the established doctrine of this court during all its history, accepted as vital to the national supremacy, that Congress, in the absence of a positive delegation of power to the state legislatures, may by legislation enforce and protect any right derived from or created by the national Constitution. It was so declared in Prigg v. Com. It was reiterated in U.S. v. Reese, 92 U.S. 214, where the court said that "rights and immunities created by and dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress, in the legitimate exercise of its discretion, shall provide. These may be varied to meet the necessities of the particular right to protected." It was distinctly reaffirmed in Strauder v. West Virginia, 100 U.S. 310, where we said that "a right or immunity created by the Constitution or only guarantied by it, even without any express delegation of power, may be protected by Congress." Will any one claim, in view of the declarations of this court in former cases, or even without them, that exemption of colored citizens within their states from race discrimination, in respect of the civil rights of citizens, is not an immunity created or derived from the national Constitution?

This court has always given a broad and liberal construction to the Constitution, so as to enable Congress, by legislation, to *51enforce rights secured by that instrument. The legislation Congress may enact, in execution of its power to enforce the provisions of this amendment, is that which is appropriate to protect the right granted. Under given circumstances, that which the court characterizes as corrective legislation might be sufficient. Under other circumstances primary direct legislation may be required. But it is for Congress, not the judiciary, to say which is best adapted to the end to be attained. In U.S. v. Fisher, 2 Cranch, 358, this court said that "Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution." "The sound construction of the Constitution," said Chief Justice Marshall,

"must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate—let it be within the scope of the constitution—and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional." McCulloch v. Maryland, 4 Wheat. 423.

Must these rules of construction be now abandoned? Are the powers of the national legislature to be restrained in proportion as the rights and privileges, derived from the nation, are more valuable? Are constitutional provisions, enacted to secure the dearest right of freemen and citizens, to be subjected to that rule of construction, applicable to private instruments, *52which requires that the words to be interpreted must be taken most strongly against those who employ them? Or shall it be remembered that

"a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature—for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty—necessarily requires that every interpretation of its powers should have a constant reference to these objects? No interpretation of the words in which those powers are granted can be a sound one which narrows down their ordinary import so as to defeat those objects." 1 Story, Const. § 422.

The opinion of the court, as I have said, proceeds upon the ground that the power of Congress to legislate for the protection of the rights and privileges secured by the Fourteenth Amendment cannot be brought into activity except with the view, and as it may become necessary, to correct and annul state laws and state proceedings in hostility to such right and privileges. In the absence of state laws or state action, adverse to such rights and privileges, the nation may not actively interfere for their protection and security. Such I understand to be the position of my brethren. If the grant to colored citizens of the United States of citizenship in their respective states imports exemption from race discrimination, in their states, in respect of the civil rights belonging to citizenship, then, to hold that the amendment remits that right to the states for their protection, primarily, and stays the hands of the nation, until it is assailed by state laws or state proceedings, is to adjudge that the amendment, so far from enlarging the powers of congress—as we have heretofore and it did—not only curtails them, but reverses the policy which the general government has pursued from its very organization. Such an interpretation of the amendment is a denial to Congress of the power, by appropriate legislation, to enforce one of its provisions. In view of the circumstances under which the recent amendments were incorporated into the Constitution, and especially in view of the peculiar character of the new *53rights they created and secured, it ought not to be presumed that the general government has abdicated its authority, by national legislation, direct and primary in its Character, to guard and protect privileges and immunities secured by that instrument. Such an interpretation of the Constitution ought not to be accepted if it be possible to avoid it. Its acceptance would lead to this anomalous result: that whereas, prior to the amendments, Congress, with the sanction of this court, passed the most stringent laws—operating directly and primarily upon states, and their officers and agents, as well as upon individuals—in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. I venture, with all respect for the opinion of others, to insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship, what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exertions of an implied power to protect and enforce a right recognized by the constitution, why shall the hands of congress be tied, so that—under an express power, by appropriate legislation, to enforce a constitutional provision, granting citizenship—it may not, by means of direct legislation, bring the whole power of this nation to bear upon states and their officers, and upon such individuals and corporations exercising public functions, as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

It does not seem to me that the fact that, by the second clause of the first section of the Fourteenth Amendment, the states are expressly prohibited from making or enforcing laws abridging the privileges and immunities of citizens of the United States, furnishes any sufficient reason for holding or maintaining that the amendment was intended to deny Congress the power, by general, primary, and direct legislation, of *54protecting citizens of the United States, being also citizens of their respective states, against discrimination, in respect to their rights as citizens, founded on race, color, or previous condition of servitude. Such an interpretation of the amendment is plainly repugnant to its fifth section, conferring upon Congress power, by appropriate legislation, to enforce, not merely the provisions containing prohibitions upon the states, but all of the provisions, express and implied, of the grant of citizenship in the first clause of the first section of the article. This alone is sufficient for holding that Congress is not restricted to the enactment of laws adapted to counteract and redress the operation of state legislation, or the action of state officers of the character prohibited by the amendment. It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights, as citizens, was to be apprehended, not altogether from unfriendly state legislation, but from the hostile action of corporations and individuals in the states. And it is to be presumed that it was intended, by that section, to clothe Congress with power and authority to meet that danger. If the rights intended to be secured by the act of 1875 are such as belong to the citizen, in common or equally with other citizens in the same state, then it is not to be denied that such legislation is appropriate to the end which Congress is authorized to accomplish, viz., to protect the citizen, in respect of such rights, against discrimination on account of his race. As to the prohibition in the Fourteenth Amendment upon the making or enforcing of state laws abridging the privileges of citizens of the United States, it was impossible for any state to have enforced laws of that character. The judiciary could have annulled all such legislation under the provision that the Constitution shall be the supreme law of the land, anything in the Constitution or laws of any state to the contrary notwithstanding. The states were *55already under an implied prohibition not to abridge any privilege or immunity belonging to citizens of the United States as such. Consequently, the prohibition upon state laws hostile to the rights belonging to citizens of the United States, was intended only as an express limitation on the powers of the states, and was not intended to diminish, in the slightest degree, the authority which the nation has always exercised, of protecting, by means of its own direct legislation, rights created or secured by the Constitution. The purpose not to diminish the national authority is distinctly negatived by the express grant of power, by legislation, to enforce every provision of the amendment, including that which, by the grant of citizenship in the state, secures exemption from race discrimination in respect of the civil rights of citizens.

It is said that any interpretation of the Fourteenth Amendment different from that adopted by the court, would authorize Congress to enact a municipal code for all the states, covering every matter affecting the life, liberty, and property of the citizens of the several states. Not so. Prior to the adoption of that amendment the constitutions of the several states, without, perhaps, an exception, secured all persons against deprivation of life, liberty, or property, otherwise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws. These rights, therefore, existed before that amendment was proposed or adopted. If, by reason of that fact, it be assumed that protection in these rights of persons still rests, primarily, with the states, and that Congress may not interfere except to enforce, by means of corrective legislation, the prohibitions upon state laws or state proceedings inconsistent with those rights, it does not at all follow that privileges which have been granted by the nation may not be protected by primary legislation upon the part of Congress. The rights and immunities of persons recognized in the prohibitive clauses of the amendments were always under the protection, *56primarily, of the states, while rights created by or derived from the United States have always been, and, in the nature of things, should always be, primarily, under the protection of the general government. Exemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new constitutional right, created by the nation, with express power in Congress, by legislation, to enforce the constitutional provision from which it is derived. If, in some sense, such race discrimination is a denial of the equal protection of the laws, within the letter of the last clause of the first section, it cannot be possible that a mere prohibition upon state denial of such equal protection to persons within its jurisdiction, or a prohibition upon state laws abridging the privileges and immunities of citizens of the United States, takes from the nation the power which it has uniformly exercised of protecting, by primary direct legislation, those privileges and immunities which existed under the constitution before the adoption of the Fourteenth Amendment, or which have been created by that amendment in behalf of those thereby made citizens of their respective states.

*57It was said of Dred Scott v. Sandford that this court in that case overruled the action of two generations, virtually inserted a new clause in the Constitution, changed its character, and made a new departure in the workings of the federal government. I may be permitted to say that if the recent amendments are so construed that Congress may not, in its own discretion, and independently of the action or non-action of the states, provide, by legislation of a primary and direct character, for the security of rights created by the national Constitution; if it be adjudged that the obligation to protect the fundamental privileges and immunities granted by the Fourteenth Amendment to citizens residing in the several states, rests, primarily, not on the nation, but on the states; if it be further adjudged that individuals and corporations exercising public functions may, without liability to direct primary legislation on the part of Congress, make the race of citizens the ground for denying them that equality of civil rights which the constitution ordains as a principle of republican citizenship—then, not only the foundations upon which the national supremacy has always securely rested will be materially disturbed, but we shall enter upon an era of constitutional law when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was accorded to slavery and the rights of the master.

But if it were conceded that the power of Congress could not be brought into activity until the rights specified in the act of 1875 had been abridged or denied by some state law or state action, I maintain that the decision of the court is erroneous. There has been adverse state action within the Fourteenth Amendment as heretofore interpreted by this court. I allude to Ex parte Virginia, supra. It appears, in that case, that one Cole, judge of a county court, was charged with the duty, by the laws of Virginia, of selecting grand and petit jurors. The law of the state did not authorize or permit him, in making such selections, to discriminate against colored citizens because of their race. But he was indicated in the federal court, under the act of 1875, for making such discriminations. *58The attorney general of Virginia contended before us that the state had done its duty, and had not authorized or directed that county judge to do what he was charged with having done, and consequently that the state had not denied to the colored race the equal protection of the laws, and the act of Cole must therefore be deemed his individual act, in contravention of the will of the state. Plausible as this argument was, it failed to convince this court, and after saying that the Fourteenth Amendment had reference to the political body denominated a state, "by whatever instruments or in whatever modes that action may be taken," and that a state acts by its legislative, executive, and judicial authorities, and can act in no other way, we proceeded:

"The constitutional provision, therefore, must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and, as he acts under the name and for the state, and is clothed with the state's power, his act is that of the state. This must be so, or the constitutional prohibition has no meaning. Then the state has clothed one of its agents with power to annual or evade it. But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon person, not upon the abstract thing denominated a state, but upon the persons who are the agents of the state, in the denial of the rights which were intended to be secured." 100 U.S. 346, 347

In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents of the state, and are *59amenable, in respect of their public duties and functions, to public regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial by these instrumentalities of the state to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the state within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights under discussion, practically at the mercy of corporation and individuals wielding power under public authority.

But the court says that Congress did not, in the act of 1866, assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has not concern. I agree that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard; for no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him, even upon grounds of race. What I affirm is that no state, nor the officers of any state, nor any corporation or individual wielding power under state authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law, or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens, in their civil rights, because of their race, or because they once labored under disabilities imposed upon them as a race. The rights which Congress, by the act of 1875, endeavored to secure and protect are legal, not social, rights. The right, for instance, of a colored citizen to use the accommodations of a public highway upon the same terms as are permitted to white citizens is no more a social right than his right, under the law, to use the public streets of a city, or a town, or a turnpike road, or a public market, or a post-office, or his right to sit *60in a public building with others of whatever race, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house or court-room was an invasion of the social rights of white persons who may frequent such places. And yet such a suggestion would be quite as sound in law—I say it with all respect—as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race.

The court, in its opinion, reserves the question whether Congress, in the exercise of its power to regulate commerce among the several states, might or might not pass a law regulating rights in public conveyances passing from one state to another. I beg to suggest that precise question was substantially presented here in the only one of these cases relating to railroads—Robinson v. Memphis & C. R. Co. In that case it appears that Mrs. Robinson, a citizen of Mississippi, purchased a railroad ticket entitling her to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. Might not the act of 1875 be maintained in that case, as applicable at least to commerce between the states, notwithstanding it does not, upon its face, profess to have been passed in pursuance of the power given to Congress to regulate commerce? Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the constitution authorizing its enactment? We have often enforced municipal bonds in aid of railroad subscriptions where they failed to recite the statute authorizing their issue, but recited one which did not sustain their validity. The inquiry in such cases has been, was there in any statute authority for the execution of the bonds? Upon this branch of the case it may be remarked that the state of Louisiana, in 1869, passed a statute *61giving to passengers, without regard to race or color, equality of right in the accommodations of railroad and street cars, steam-boats, or other water-crafts, stagecoaches, omnibuses, or other vehicles. But in Hall v. De Cuir, 95 U.S. 487, that act was pronounced unconstitutional so far as it related to commerce between the state, this court saying that "if the public good requires such legislation it must come from Congress and not from the state." I suggest that it may become a pertinent inquiry whether Congress may, in the exertion of its power to regulate commerce among the states, enforce among passengers on public conveyances quality of right without regard to race, color, or previous condition of servitude, if it be true—which I do not admit—that such legislation would be an interference by government with the social rights of the people.

My brethren say that when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. What the nation, through Congress, has sought to accomplish in reference to that race is, what had already been done in every state in the Union for the white race, to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of their legal right to take that rank, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. *62At every step in this direction the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, "for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot." Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree—for the due enforcement of which, by appropriate legislation, Congress has been invested with express power—every one must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy, either of the recent changes in the fundamental law, or of the legislation which has been enacted to give them effect.

For the reasons stated I feel constrained to withhold my assent to the opinion of the court.

Plessy v. Ferguson.

May 18, 1896

*538This was a petition for writs of prohibition and certiorari originally filed in the supreme court of the state by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal district court for the parish of Orleans, and setting forth, in substance, the following facts:

That petitioner was a citizen of the United States and a resident of the state of Louisiana, of mixed descent, in the proportion of seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws; that on June 7, 1892, he engaged and paid for a first-class passage on the East Louisiana Railway, from New Orleans to Covington, in the same state, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race, but, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach, and occupy another seat, in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach, and hurried off to, and imprisoned in, the parish jail of*539 New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the general assembly of the state, approved July 10, 1890, in such case made and provided.

The petitioner was subsequently brought before the recorder of the city for preliminary examination, and committed for trial to the criminal district court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the constitution of the United States; that petitioner interposed a plea to such information, based upon the unconstitutionality of the act of the general assembly, to which the district attorney, on behalf of the state, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal district court were annexed to the petition as an exhibit.

Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue, and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the supreme court.

To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to ad*540mit that he was in any sense or in any proportion a colored man.

The case coming on for hearing before the supreme court, that court was of opinion that the law under which the prosecution was had was constitutional and denied the relief prayed for by the petitioner (Ex parte Plessy, 45 La. Ann. 80, 11 South. 948); whereupon petitioner prayed for a writ of error from this court, which was allowed by the chief justice of the supreme court of Louisiana.

Mr. Justice Harlan dissenting.

A. W. Tourgee and S. F. Phillips, for plaintiff in error.

Alex. Porter Morse, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152.

The first section of the statute enacts 'that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.'

By the second section it was enacted 'that the officers of such passenger trains shall have power and are hereby required*541 to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.'

The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that 'nothing in this act shall be construed as applying to nurses attending children of the other race.' The fourth section is immaterial.

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate*542 said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

1. That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude, except § a punishment for crime, is too clear for argument. Slavery implies involuntary servitude,—a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter-House Cases, 16 Wall. 36, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word 'servitude' was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case, that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern states, imposing upon the colored race onerous disabilities and burdens, and curtailing their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value; and that the fourteenth amendment was devised to meet this exigency.

So, too, in the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but*543 only as involving an ordinary civil injury, properly cognizable by the laws of the state, and presumably subject to redress by those laws until the contrary appears. 'It would be running the slavery question into the ground,' said Mr. Justice Bradley, 'to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.'

A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-House Cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states.

*544The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguish d from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools.

'The great principle,' said Chief Justice Shaw, 'advanced by the learned and eloquent advocate for the plaintiff [Mr. Charles Sumner], is that, by the constitution and laws of Massachusetts, all persons, without distinction of age or sex, birth or color, origin or condition, are equal before the law. * * * But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.'

It was held that the powers of the committee extended to the establish*545ment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by congress under its general power of legislation over the District of Columbia (sections 281-283, 310, 319, Rev. St. D. C.), as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 210; Lehew v. Brummell (Mo. Sup.) 15 S. W. 765; Ward v. Flood, 48 Cal. 36; Bertonneau v. Directors of City Schools, 3 Woods, 177, Fed. Cas. No. 1,361; People v. Gallagher, 93 N. Y. 438; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the state. State v. Gibson, 36 Ind. 389.

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U. S. 303, it was held that a law of West Virginia limiting to white male persons 21 years of age, and citizens of the state, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty, and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. Virginia v. Rivers, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Com., 107 U. S. 110, 1 Sup. Ct. 625; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904. So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of*546 color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Co. v. Brown, 17 Wall. 445.

Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the states to give to all persons traveling within that state, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U. S. 485. The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the states.

In the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, it was held that an act of congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, on land or water, theaters, and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void, upon the ground that the fourteenth amendment was prohibitory upon the states only, and the legislation authorized to be adopted by congress for enforcing it was not direct legislation on matters respecting which the states were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation, such as might be necessary or proper for counter-acting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the fourteenth amendment 'does not invest congress with power to legislate upon subjects that are within the*547 domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws, and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.'

Much nearer, and, indeed, almost directly in point, is the case of the Louisville, N. O. & T. Ry. Co. v. State, 133 U. S. 587, 10 Sup. Ct. 348, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi (66 Miss. 662, 6 South. 203) had held that the statute applied solely to commerce within the state, and, that being the construction of the state statute by its highest court, was accepted as conclusive. 'If it be a matter,' said the court (page 591, 133 U. S., and page 348, 10 Sup. Ct.), 'respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. * * * No question arises under this section as to the power of the state to separate in different compartments interstate pas*548sengers, or affect, in any manner, the privileges and rights of such passengers. All that we can consider is whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races. That affecting only commerce within the state is no invasion of the power given to congress by the commerce clause.'

A like course of reasoning applies to the case under consideration, since the supreme court of Louisiana, in the case of State v. Judge, 44 La. Ann. 770, 11 South. 74, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the state. The case was decided largely upon the authority of Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 South, 203, and affirmed by this court in 133 U. S. 587, 10 Sup. Ct. 348. In the present case no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the state of Louisiana. Similar statutes for the separation of the two races upon public conveyances were held to be constitutional in Railroad v. Miles, 55 Pa. St. 209; Day v. Owen 5 Mich. 520; Railway Co. v. Williams, 55 Ill. 185; Railroad Co. v. Wells, 85 Tenn. 613; 4 S. W. 5; Railroad Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; People v. King (N. Y. App.) 18 N. E. 245; Houck v. Railway Co., 38 Fed. 226; Heard v. Railroad Co., 3 Inter St. Commerce Com. R. 111, 1 Inter St. Commerce Com. R. 428.

While we think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensa*549tion in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the state's attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular state, is to be deemed a white, and who a colored, person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act, so far as it requires the railway to provide separate accommodations, and the conductor to assign passengers according to their race.

It is claimed by the plaintiff in error that, in an mixed community, the reputation of belonging to the dominant race, in this instance the white race, is 'property,' in the same sense that a right of action or of inheritance is property. Conceding this to be so, for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man, and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called 'property.' Upon the other hand, if he be a colored man, and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.

In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side*550 of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Co. v. Husen, 95 U. S. 465; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714, and cases cited on page 700, 161 U. S., and page 714, 16 Sup. Ct.; Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538; Capen v. Foster, 12 Pick. 485; State v. Baker, 38 Wis. 71; Monroe v. Collins, 17 Ohio St. 665; Hulseman v. Rems, 41 Pa. St. 396; Osman v. Riley, 15 Cal. 48.

So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances*551 is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the court of appeals of New York in People v. Gallagher, 93 N. Y. 438, 448:

'This end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed.'

Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly*552 or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different states; some holding that any visible admixture of black blood stamps the person as belonging to the colored race (State v. Chavers, 5 Jones [N. C.] 1); others, that it depends upon the preponderance of blood (Gray v. State, 4 Ohio, 354; Monroe v. Collins, 17 Ohio St. 665); and still others, that the predominance of white blood must only be in the proportion of three-fourths (People v. Dean, 14 Mich. 406; Jones v. Com., 80 Va. 544). But these are questions to be determined under the laws of each state, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is therefore affirmed.

Mr. Justice BREWER did not hear the argument or participate in the decision of this case.

Mr. Justice HARLAN dissenting.

By the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carry passengers in that state are required to have separate but equal accommodations for white and colored persons, 'by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.' Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons; nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of is race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race,*553 he is subject to be fined, or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors, and employees of railroad companies to comply with the provisions of the act.

Only 'nurses attending children of the other race' are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty.

While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act 'white and colored races' necessarily include all citizens of the United States of both races residing in that state. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

Thus, the state regulates the use of a public highway by citizens of the United States solely upon the basis of race.

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the constitution of the United States.

That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 382, said that a common carrier was in the exercise 'of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned.' Mr. Justice Strong, delivering the judgment of*554 this court in Olcott v. Supervisors, 16 Wall. 678, 694, said: 'That railroads, though constructed by private corporations, and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use?' So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: 'Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the state.' So, in Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564: 'The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement.' 'It is true that the real and personal property, necessary to the establishment and management of the railroad, is vested in the corporation; but it is in trust for the public.'

In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the*555 race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.

The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.'

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure 'to a race recently emancipated, a race that through*556 many generations have been held in slavery, all the civil rights that the superior race enjoy.' They declared, in legal effect, this court has further said, 'that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.' We also said: 'The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy; and discriminations which are steps towards reducing them to the condition of a subject race.' It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race, however well qualified in other respects to discharge the duties of jurymen, was repugnant to the fourteenth amendment. Strauder v. West Virginia, 100 U. S. 303, 306, 307; Virginia v. Rives, Id. 313; Ex parte Virginia, Id. 339; Neal v. Delaware, 103 U. S. 370, 386; Bush v. Com., 107 U. S. 110, 116, 1 Sup. Ct. 625. At the present term, referring to the previous adjudications, this court declared that 'underlying all of those decisions is the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government or the states against any citizen because of his race. All citizens are equal before the law.' Gibson v. State, 162 U. S. 565, 16 Sup. Ct. 904.

The decisions referred to show the scope of the recent amendments of the constitution. They also show that it is not within the power of a state to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice.

It was said in argument that the statute of Louisiana does *557 not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. ‘Personal liberty,’ it has been well said, ‘consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint, unless by due course of law.’ 1 Bl. Comm. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.

It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road*558 or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?

The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the la . Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, 'the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.' Sedg. St. & Const. Law, 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts, by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are co-ordinate and separate. Each much keep within the limits defined by the constitution. And the courts best discharge their duty by executing the will of the law-making power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly, sometimes literally, in order to carry out the legislative *559will. But, however construed, the intent of the legislature is to be respected if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void, because unreasonable, are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent.

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

It was adjudged in that case that the descendants of Africans who were imported into this country, and sold as slaves, were not included nor intended to be included under the word 'citizens' in the constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at time of the adoption of the constitution, they were 'considered as a subordinate and inferior class of beings, who had been subjugated by the dominant*560 race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.' 17 How. 393, 404. The recent amendments of the constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the states, a dominant race,—a superior class of citizens,—which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the constitution, by one of which the blacks of this country were made citizens of the United States and of the states in which they respectively reside, and whose privileges and immunities, as citizens, the states are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the*561 war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he does object, and he ought never to cease objecting, that citizens of the white and black races can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway.

*562The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.

If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,—our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

The result of the whole matter is that while this court has frequently adjudged, and at the present term has recognized the doctrine, that a state cannot, consistently with the constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a state may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a 'partition' when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a 'partition,' and that, upon retiring from the court room to consult as to their verdict, such partition, if it be a movable one, shall be taken to their consultation room, and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the 'partition' used in the court room happens to be stationary, provision could be made for screens with openings through*563 which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the constitution.

I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them, are wholly inapplicable, because rendered prior to the adoption of the last amendments of the constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States, and residing ere, obliterated the race line from our systems of governments, national and state, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the*564 'People of the United States,' for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

Giles v. Harris.

Submitted February, 24, 1903.

Decided April 27, 1903.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA.

Mr. Wilford H. Smith for appellant.

Mr. William A. Gunter for appellees.

*482 MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity brought by a colored man, on behalf of himself "and on behalf of more than five thousand negroes, citizens of the county of Montgomery, Alabama, similarly situated and circumstanced as himself," against the board of registrars of that county. The prayer of the bill is in substance that the defendants may be required to enroll upon the voting lists the name of the plaintiff and of all other qualified members of his race who applied for registration before August 1, 1902, and were refused, and that certain sections of the constitution of Alabama,.viz., sections 180, 181, 183, 184, 185, 186, 187 and 188 of article 8, may be declared contrary to the Fourteenth and Fifteenth Amendments of the Constitution of the United States, and void.

The allegations of the bill may be summed up as follows. The plaintiff is subject to none of the disqualifications set forth in the constitution of Alabama and is entitled to vote — entitled, as the bill plainly means, under the constitution as it is. He applied in March, 1902, for registration as a voter, and was refused arbitrarily on the ground of his color, together with large numbers of other duly qualified negroes, while all white men were registered. The same thing was done all over the State. Under section 187 of article 8 of the Alabama constitution persons registered before January 1, 1903, remain electors for life unless they become disqualified by certain crimes, etc., while after that date severer tests come into play which would exclude, perhaps, a large part of the black race. Therefore, by the refusal, the plaintiff and the other negroes excluded were deprived not only of their vote at an election which has taken place since the bill was filed, but of the permanent advantage incident to registration before 1903. The white men generally are registered for good under the easy test and the black men are likely to be kept out in the future as in the past. This refusal to register the blacks was part of a general scheme to disfranchise them, to which the defendants and the State itself, according to the bill, were parties. The defendants accepted their office for the purpose of carrying out the scheme. The *483 part taken by the State, that is, by the white population which framed the constitution, consisted in shaping that instrument so as to give opportunity and effect to the wholesale fraud which has been practised.

The bill sets forth the material sections of the state constitution, the general plan of which, leaving out details, is as follows: By § 178 of article 8, to entitle a person to vote he must have resided in the State at least two years, in the county one year and in the precinct or ward three months, immediately preceding the election, have paid his poll taxes and have been duly registered as an elector. By § 182, idiots, insane persons and those convicted of certain crimes are disqualified. Subject to the foregoing, by § 180, before 1903 the following male citizens of the State, who are citizens of the United States, were entitled to register, viz.: First. All who had served honorably in the enumerated wars of the United States, including those on either side in the "war between the States." Second. All lawful descendants of persons who served honorably in the enumerated wars or in the war of the Revolution. Third. "All persons who are of good character and who understand the duties and obligations of citizenship under a republican form of government."As we have said, according to the allegations of the bill this part of the constitution, as practically administered and as intended to be administered, let in all whites and kept out a large part, if not all, of the blacks, and those who were let in retained their right to vote after 1903, when tests which might be too severe for many of the whites as well as the blacks went into effect. By § 181, after January 1, 1903, only the following persons are entitled to register: First. Those who can read and write any article of the Constitution of the United States in the English language, and who either are physically unable to work or have been regularly engaged in some lawful business for the greater part of the last twelve months, and those who are unable to read and write solely because physically disabled. Second. Owners or husbands of owners of forty acres of land in the State, upon which they reside, and owners or husbands of owners of real or personal estate in the State assessed for taxation at three *484 hundred dollars or more, if the taxes have been paid unless under contest. By § 183, only persons qualified as electors can take part in any method of party action. By § 184, persons not registered are disqualified from voting. By § 185, an elector whose vote is challenged shall be required to swear that the matter of the challenge is untrue before his vote shall be received. By § 186, the legislature is to provide for registration after January 1, 1903, the qualifications and oath of the registrars are prescribed, the duties of registrars before that date are laid down, and an appeal is given to the county court and Supreme Court if registration is denied. There are further executive details in § 187, together with the above mentioned continuance of the effect of registration before January 1, 1903. By § 188, after the last mentioned date applicants for registration may be examined under oath as to where they have lived for the last five years, the names by which they have been known, and the names of their employers. This, in brief, is the system which the plaintiff asks to have declared void.

Perhaps it should be added to the foregoing statement that the bill was filed in September, 1902, and alleged the plaintiff's desire to vote at an election coming off in November. This election has gone by, so that it is impossible to give specific relief with regard to that. But we are not prepared to dismiss the bill or the appeal on that ground, because to be enabled to cast a vote in that election is not, as in Mills v. Green, 159 U.S. 651, 657, the whole object of the bill. It is not even the principal object of the relief sought by the plaintiff. The principal object of that is to obtain the permanent advantages of registration as of a date before 1903.

The certificate of the circuit judge raises the single question of the jurisdiction of the court. The plaintiff contends that this jurisdiction is given expressly by Rev. Stat. § 629, cl. 16, coupled with Rev. Stat. § 1979, which provides that every person who, under color of a state "statute, ordinance, regulation, custom, or usage," "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, *485 or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

We assume, as was assumed in Holt v. Indiana Manufacturing Co., 176 U.S. 68, 72, that § 1979 has not been repealed, and that jurisdiction to enforce its provisions has not been taken away by any later act. But it is suggested that the Circuit Court was right in its ruling that it had no jurisdiction as a court of the United States, because the bill did not aver threatened damage to an amount exceeding two thousand dollars. It is true that by the act of August 13, 1888, c. 866, § 1, 25 Stat. 433, 434, the Circuit Courts are given cognizance of suits of a civil nature, at common law or in equity, arising under the Constitution or laws of the United States, in which the matter in dispute exceeds the sum or value of two thousand dollars. We have recognized, too, that the deprivation of a man's political and social rights properly may be alleged to involve damage to that amount, capable of estimation in money. Wiley v. Sinkler, 179 U.S. 58; Swafford v. Templeton, 185 U.S. 487. But, assuming that the allegation should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied by amendment, we think it unavailing. The certificate was made alio intuitu. There is no pecuniary limit on appeals to this court under section 5 of the act of 1891, c. 517, 26 Stat. 826, 828, The Paquete Habana, 175 U.S. 677, 683, and we do not feel called upon to send the case back to the Circuit Court in order that it might permit the amendment. In Mills v. Green, 159 U.S. 651; S.C., 69 Fed. Rep. 852, no notice was taken of the absence of an allegation of value in a case like this.

We assume further, for the purposes of decision, that § 1979 extends to a deprivation of rights under color of a state constitution, although it might be argued with some force that the enumeration of "statute, ordinance, regulation, custom, or usage," purposely is confined to inferior sources of law. On these assumptions we are not prepared to say that an action at law could not be maintained on the facts alleged in the bill. Therefore we are not prepared to say that the decree should be affirmed *486 on the ground that the subject matter is wholly beyond the jurisdiction of the Circuit Court. Smith v. McKay, 161 U.S. 355, 358, 359.

Although the certificate relates only to the jurisdiction of that court as a court of the United States, yet, as the ground of the bill is that the constitution of Alabama is in contravention of the Constitution of the United States, the appeal opens the whole case under the act of 1891, c. 517, § 5, 26 Stat. 827. The plaintiff had the right to appeal directly to this court. The certificate was unnecessary to found the jurisdiction of this court, and could not narrow it. As the case properly is here we proceed to consider the substance of the complaint.

It seems to us impossible to grant the equitable relief which is asked. It will be observed in the first place that the language of § 1979 does not extend the sphere of equitable jurisdiction in respect of what shall be held an appropriate subject matter for that kind of relief. The words are "shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." They allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding. The traditional limits of proceedings in equity have not embraced a remedy for political wrongs. Green v. Mills, 69 Fed. Rep. 852. But we cannot forget that we are dealing with a new and extraordinary situation, and we are unwilling to stop short of the final considerations which seems to us to dispose of the case.

The difficulties which we cannot overcome are two, and the first is this: The plaintiff alleges that the whole registration scheme of the Alabama constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But of course he could not maintain a bill for a mere declaration in the air. He does not try to do so, but asks to be registered as a party qualified under the void instrument. If then we accept the conclusion which it is the chief purpose of the bill to maintain, how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists? If a white man came here on the same general *487 allegations, admitting his sympathy with the plan, but alleging some special prejudice that had kept him off the list, we hardly should think it necessary to meet him with a reasoned answer. But the relief cannot be varied because we think that in the future the particular plaintiff is likely to try to overthrow the scheme. If we accept the plaintiff's allegations for the purposes of his case, he cannot complain. We must accept or reject them. It is impossible simply to shut our eyes, put the plaintiff on the lists, be they honest or fraudulent, and leave the determination of the fundamental question for the future. If we have an opinion that the bill is right on its face, or if we are undecided, we are not at liberty to assume it to be wrong for the purposes of decision. It seems to us that unless we are prepared to say that it is wrong, that all its principal allegations are immaterial and that the registration plan of the Alabama constitution is valid, we cannot order the plaintiff's name to be registered. It is not an answer to say that if all the blacks who are qualified according to the letter of the instrument were registered, the fraud would be cured. In the first place, there is no probability that any way now is open by which more than a few could be registered, but if all could be the difficulty would not be overcome. If the sections of the constitution concerning registration were illegal in their inception, it would be a new doctrine in constitutional law that the original invalidity could be cured by an administration which defeated their intent. We express no opinion as to the alleged fact of their unconstitutionality beyond saying that we are not willing to assume that they are valid, in the face of the allegations and main object of the bill, for the purpose of granting the relief which it was necessary to pray in order that that object should be secured.

The other difficulty is of a different sort, and strikingly reinforces the argument that equity cannot undertake now, any more than it has in the past, to enforce political rights, and also the suggestion that state constitutions were not left unmentioned in § 1979 by accident. In determining whether a court of equity can take jurisdiction, one of the first questions is what it can do to enforce any order that it may make. This is alleged *488 to be the conspiracy of a State, although the State is not and could not be made a party to the bill. Hans v. Louisiana, 134 U.S. 1. The Circuit Court has no constitutional power to control its action by any direct means. And if we leave the State out of consideration, the court has as little practical power to deal with the people of the State in a body. The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff's name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that State by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States.

Decree affirmed.

MR. JUSTICE HARLAN dissenting.

By the final judgment in the Circuit Court the bill in this case was dismissed for want of jurisdiction to entertain it and for want of equity; and from that judgment the plaintiffs prayed and were allowed an appeal.

Subsequently an order was made by the Circuit Court certifying that the only question considered and decided was whether upon the bill and demurrer a case was presented of *494 which it had jurisdiction under the Constitution and laws of the United States.

Although the case involves questions of considerable importance, it was submitted here without oral argument.

Could the Circuit Court take cognizance of this cause consistently with the act of Congress regulating its jurisdiction? This is naturally the fundamental, if not the only, question in the case. An answer to the question requires a reference to several acts of Congress, including the Judiciary Act of August 13, 1888, correcting that of March 3, 1887. 25 Stat. 433.

Section 629 of the Revised Statutes enumerates in subdivisions the cases of which the Circuit Courts of the United States may take original cognizance.

In subdivision one of that section the Circuit Courts are given original cognizance "of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where it is brought and a citizen of another State;" and in subdivision two, "of all suits in equity, where the matter, exclusive of costs, exceeds the sum or value of five hundred dollars, and the United States are petitioners." Rev. Stat. § 629, subdiv. 1 and 2.

By the sixteenth subdivision of that section it is declared that the Circuit Courts shall have original cognizance " of all suits authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or of all persons within the jurisdiction of the United States." The matter in dispute in such suits was not expressly required by the Revised Statutes to have any money value.

By section 1979 of the Revised Statutes, Title 24, "Civil Rights," it is provided that "every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen *495 of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." It has been said that this section as well as subdivision 16 of section 629 were based upon the first section of the act of April 20, 1871, 17 Stat. 13, c. 22, entitled "An act to enforce the provisions of the Fourteenth Amendment to the Constitution of the United States, and for other purposes." Holt v. Indiana Manuf. Co., 176 U.S. 68, 70.

Next came the act of March 3, 1875, which provided that "The Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects; and shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the District Courts of the crimes and offences cognizable therein." 18 Stat. 470, c. 137. That act expressly repealed previous statutes in conflict with its provisions.

Then came the act of 1888, correcting that of 1887, and which provides "That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, *496 or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid." By that act the conflicting provisions of previous acts were repealed, except in certain particulars, among which were the provisions relating to "any jurisdiction or right mentioned . . . in Title twenty-four of the Revised Statutes," Civil Rights, under which Title § 1979 is found.

It is clear that under the act of 1888 a Circuit Court could not take original cognizance of a suit simply because it was one arising under the Constitution or laws of the United States. The value of the matter in dispute in such a case must exceed $2000, exclusive of interest and costs.

The bill makes no allegation whatever as to the value of the matter in dispute, although this court, speaking by the Chief Justice, in Holt v. Indiana Manufacturing Company, above cited, after referring to the first section of the Judiciary Act of 1888, said: "This" [the question of the value in dispute in cases arising under the Constitution or laws of the United States] "was carefully considered in United States v. Sayward, 160 U.S. 493, and it was held that the sum or value named was jurisdictional, and that the Circuit Court could not, under the statute, take original cognizance of a case arising under the Constitution or laws of the United States unless the sum or value of the matter in dispute, exclusive of costs and interest, exceeded two thousand dollars. That decision was reaffirmed in Fishback v. Western Union Telegraph Company, 161 U.S. 96, 99." It was added — contrary to the intimation given in the opinion in the present case — that "the conclusion reached is not affected by the fact that the operation of the act of March 3, 1891, was to do away with any pecuniary limitation on appeals directly from the Circuit Courts to this court. The Paquete *497 Habana, 175 U.S. 677." Of course, it was not meant by that language that the jurisdiction of the Circuit Courts, so far as the value of the matter in dispute is concerned, was changed as to the cases embraced by the fifth section of the act of 1891. The act of 1891 left the original jurisdiction of the Circuit Courts as established by the act of 1888.

1. It cannot be disputed that the present suit is one arising under the Constitution and laws of the United States, and it is clear that the value of the matter in dispute is made by the statute an essential element in the jurisdiction of the Circuit Court in such a case. But it has been suggested that this suit is also embraced by subdivision 16 of § 629 and § 1979 of the Revised Statutes — which provisions this court assumed, in Holt v. Manufacturing Co., and now assumes, were not repealed by any subsequent statute, and, therefore, that the value of the matter in dispute is of no consequence. But this suggestion overlooks the declaration of the court in that case to the effect that although the above provisions must be assumed to be still (1899) in force, they refer "to civil rights only." 176 U.S. 72. In this view, subdivision 16 of § 629 and § 1979 of the Revised Statutes have no bearing upon the present case, if the rights for the protection of which the present suit was brought are political rights, and not civil rights within the meaning of the statutes relating to "Civil Rights." Consequently the saving clause in the act of 1888 in respect of any jurisdiction or right mentioned in Title 24 of the Revised Statutes, Civil Rights, becomes immaterial in the present case. Whether this be so or not, the court refrains from declaring that the plaintiff could proceed under subdivision 16 of section 629 or section 1979 of the Revised Statutes, without regard to the value of the matter in dispute. If this court thinks that this suit could be maintained under subdivision 16 of § 629 or under § 1979, or under both, without regard to the value of the matter in dispute, I submit that it should have been so adjudged.

2. Referring to the suggestion that the act of 1888 gives the Circuit Court jurisdiction in all suits at law or equity, in which the matter in dispute is the sum or value of $2000 and arising under the Constitution or laws of the United States, and conceding *498 that this court in Wiley v. Sinkler, 179 U.S. 57, and Swafford v.Templeton, 185 U.S. 487, recognized that the deprivation of a man's political rights (those cases had reference to the elective franchise) may properly be alleged to have the required value in money, the court says: "Assuming that the allegation [of value] should have been made in a case like this, the objection to its omission was not raised in the Circuit Court, and as it could have been remedied by amendment, we think it unavailing. The certificate was made alio intuitu. There is no pecuniary limit on appeals in this court under section 5 of the act of 1891, c. 517, 26 Stat. 826, 828; The Paquete Habana, 175 U.S. 677, 683, and we do not feel called upon to send the case back to the Circuit Court that it might permit the amendment."

It seems to me that this question as to the value of the matter in dispute was sufficiently raised in the Circuit Court; for the demurrer to the bill was, in part, on the ground that the facts stated did not make a case "within the jurisdiction of the court." But, passing that view, I come to a more serious matter. In cases of which a Circuit Court may take original cognizance, the value of the matter in dispute — which is mentioned in the statute in advance of any reference to the nature of the subject of the action — is as essential to jurisdiction as is the nature of the subject of such dispute. And yet the court says that an objection that the record from the Circuit Court does not show an allegation as to value is unavailing here, even if such allegation ought to have been made. That is a new, and I take leave to say a startling, doctrine. Must not this court upon its own motion decline to pass upon, indeed, has this court, strictly speaking, jurisdiction to consider and determine, the merits of a case coming from the Circuit Court, unless it affirmatively appears from the record that the case is one of which that court could take cognizance? Is not a suit presumably without the jurisdiction of a Circuit Court, unless the record shows it to be one of which that court may take cognizance? Is it of any consequence that the parties did not raise the question of jurisdiction in the Circuit Court? If the record shows nothing more than that the case *499 arises under the Constitution and laws of the United States, and if it does not affirmatively appear, in some appropriate way, that the value of the matter in dispute is up to the required amount, has this court jurisdiction to consider and determine the merits of the case?

Let us look at some of the adjudged cases upon the general subject of the jurisdiction of the Federal courts, and see what the duty of this court is when its own jurisdiction does not affirmatively appear from the record, or when it does not appear that the Circuit Court had jurisdiction.

In Sizer v. Many, 16 How. 97, 103, which was an action for the infringement of letters patent: "The sum taxed being less than $2000 no writ of error will lie under the act of 1789. This act gives no jurisdiction to this court over the judgment of a Circuit Court, where the judgment is for less than that sum. . .. The writ of error must therefore be dismissed for want of jurisdiction." In Brown v. Shannon, 20 How. 55, 58, which was an action to enforce the specific execution of a contract in relation to the use of a patent right: "The sum mentioned in the bill . . . being less than $2000, whatever errors may be apparent in the proceedings and decree of the court below, we have yet no power under the act of Congress to revise and correct them, and the appeal must be dismissed." In Richmond v. City of Milwaukee, 21 How. 80, 82, which was an action to prohibit the conveyance of certain lots: "There is nothing in the allegations of the parties or in the evidence to show that the value of the lots in question exceeded $2000, nor anything from which it can be inferred. The appeal must therefore be dismissed for want of jurisdiction in this court." In Pratt v. Fitzhugh, 1 Black, 271, 273, which was a cause in admiralty: "Without the fact of value being shown on the record, or by evidence aliunde, the court has no jurisdiction." In Walker v. United States, 4 Wall. 163, 165,which was an action on a judgment for money: "This court has no appellate jurisdiction, except such as is defined by Congress. The act of Congress limits this jurisdiction to cases where the matter in dispute exceeds $2000. We can no more take jurisdiction where the matter does not exceed than we can where it is less *500 than that sum. The amount in controversy in the case before us, ascertained in conformity with the settled principles of the court, does not exceed two thousand dollars. We have, therefore, no jurisdiction of the writ of error, and it must be dismissed." In The Grace Girdler, 6 Wall. 441, which was an appeal in admiralty: "While it is true that the greater part of the loss fell upon Lockwood as owner of the Ariel, and her belongings, there is nothing in the record which shows that the damage sustained exceeded $2000. And this is essential to jurisdiction." In Ayersv. Watson, 113 U.S. 595, 598, which was an action of trespass to try title to land: "Diverse state citizenship of the parties, or some other jurisdictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed."

These cases relate to the jurisdiction of this court under statutes prescribing a certain amount as essential, upon writ of error or appeal, for the review of judgments rendered in the Circuit Court.

Looking now at cases in which the want of jurisdiction in the Circuit Court has been held to preclude this court from going into the merits of the case adjudged, we find in King Bridge Co. v. Otoe County, 120 U.S. 226, which was an action upon county warrants, this language: "It does not appear that the Circuit Court had jurisdiction of the action. Unless the contrary appears affirmatively from the record, the presumption, upon writ of error or appeal, is that the court below was without jurisdiction." In Metcalf v. Watertown, 128 U.S. 587, which was an action upon a judgment, and in which case the question was whether an action upon a certain judgment was barred by limitation, this court said: "We are not, however, at liberty to express any opinion upon the question of limitation, if the court, whose judgment has been brought here for review, does not appear, from the record, to have had jurisdiction of the case. And whether that court had or had not jurisdiction, is a question which we must examine and determine, even if the parties forbear to make it, or consent that the case be *501 considered upon its merits." In Chapmanv. Barney, 129 U.S. 677, 681, which was an action for trover: "We are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is presented by the record, and under repeated decisions of this court must be considered." In Parker v. Ormsby, 141 U.S. 83: "Did the court below have jurisdiction of this case? If jurisdiction did not affirmatively appear, upon the record, it was error to have rendered a decree, whether the question of jurisdiction was raised or not in the court below. In the exercise of its power, this court, of its own motion, must deny the jurisdiction of the courts of the United States, in all cases coming before it, upon writ of error or appeal, where such jurisdiction does not affirmatively appear in the record on which it is called to act." In Mattingly v. Northwestern Virginia Railroad, 158 U.S. 53, 57, which was an action to set aside certain conveyances and to foreclose a mortgage: "Although it does not appear that the question of jurisdiction was raised in the court below by any plea or motion, yet as the record failed to affirmatively show jurisdiction, this court must take notice of the defect."

According to the adjudged cases, the first inquiry which this court should make as to any case before it from an inferior Federal court is as to its own jurisdiction. If jurisdiction does not appear from the record then the writ of error or appeal should be dismissed. If it is found to have jurisdiction for any purpose, then its next duty is to inquire as to the jurisdiction of the court below. When the latter court does not appear upon the record to have jurisdiction, then the duty of this court is to reverse the judgment and remand the case to be dismissed for want of jurisdiction. I say "appear upon the record to have jurisdiction," because, as we have seen, the presumption is that a cause is without the jurisdiction of a Federal court, unless the contrary affirmatively appears. Turner v. Bank of North America, 4 Dall. 8; Brown v. Keene, 8 Pet. 115; Ex parte Smith, 94 U.S. 455; Robertson v. Cease, 97 U.S. 646. In Brown v. Keene, Chief Justice Marshall said: "The decisions of this court require that the averment of jurisdiction shall be positive; that the declaration shall state expressly the fact on which jurisdiction *502 depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments."

To these cases I will add that of M.C. & L.M. Railway v. Swan, 111 U.S. 379, 382,in which this court said: "It is true that the plaintiffs below, against whose objection the error was committed, do not complain of being prejudiced by it; and it seems to be an anomaly and a hardship that the party at whose instance it was committed should be permitted to derive an advantage from it; but the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it."

In the above case of Holt v. Manufacturing Co., 176 U.S. 68, which involved a question of the jurisdiction of the Circuit Court, this court said: "In this, as in all cases, if it appears that the Circuit Court had no jurisdiction, it is the duty of this court to so declare, and enter judgment accordingly."

These principles have been expressly affirmed by this court in many other cases. And yet, according to the opinion in this case, if objection is not made in the Circuit Court to its jurisdiction, it will be unavailing to raise that question in this court, and we may proceed to determine the merits of the case. Such a doctrine, I repeat, is a new departure. The court, in effect says, that although it may know that the record fails to show a case within the original cognizance of the Circuit Court, it may close its eyes to that fact, and review the case on its merits. In view of the adjudged cases, I cannot agree that the failure of parties to raise a question of jurisdiction will relieve this court of its duty to raise it upon its own motion. The contrary *503view cannot be justified. This court may not assume jurisdiction to do that which it has no authority to do.

It will be appropriate to observe that the Circuit Court in effect propounds the question whether it had jurisdiction of this case upon the record before it. That question necessarily involves the inquiry whether subdivision 16 of § 629 and § 1979 of the Revised Statutes were repealed by later acts. But that point is left undecided, the court only assuming that those statutory provisions are still in force, but it does not say whether the suit could be maintained under those sections or under either of them without allegation or proof as to the value of the matter in dispute. Nor does the court distinctly adjudge whether the case is embraced by the act of 1887-8; but simply assuming that the allegation of value should have been made in the bill, it proceeds to consider the case upon its merits. The question of the jurisdiction of the Circuit Court under the acts of Congress, the one certified, is thus left in the air, and the case is examined and disposed of upon its merits just as if jurisdiction of the Circuit Court appeared upon the record. There is no claim that the essential fact of value appears anywhere in the record, either in the bill or otherwise. Consequently, as already said, this court is without power to consider the merits.

The court says that the plaintiff had the right to appeal directly to this court under section 5 of the act of 1891, and that the certificate was unnecessary to found the jurisdiction of this court and could not narrow it. But it does not follow that this court can review the merits of the case, if the Circuit Court does not appear to have had jurisdiction to determine the rights of the parties.

My views may be summed up as follows: 1. This case is embraced by that clause of the act of 1887-8, which provides that the Circuit Court shall have original cognizance "of all suits of a civil nature, . . . where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States." 2. That the sum or value of the matter in dispute in such cases is jurisdictional under the statute. 3. That as it did not appear from the record, in any way, that the matter *504 in dispute exceeded in value the jurisdictional amount, the Circuit Court could not take cognizance of the case or dispose of it upon its merits. 4. That least of all does this court have jurisdiction to determine the merits of this case. 5. That when a case comes here upon a certificate as to the jurisdiction of a Circuit Court, this court may not forbear to decide that question, and determine the merits of the case upon a record which does not show jurisdiction in the Circuit Court.

As these are my views as to the jurisdiction of this court, upon this record, I will not formulate and discuss my views upon the merits of this case. But to avoid misapprehension, I may add that my conviction is that upon the facts alleged in the bill (if the record showed a sufficient value of the matter in dispute) the plaintiff is entitled to relief in respect of his right to be registered as a voter. I agree with MR. JUSTICE BREWER that it is competent for the courts to give relief in such cases as this.

MR. JUSTICE BREWER dissenting.

I am unable to concur in either the opinion or judgment in this case. The single question is whether the Circuit Court of the United States had jurisdiction. Accepting the statement of facts in the opinion of the majority as sufficiently full, it appears that the plaintiff was entitled to a place on the permanent registry and was denied it by the defendants, the board of registrars in the county in which he lived. No one was allowed to vote who was not registered. He desired to vote at the coming election for representative in Congress. He was deprived of that right by the action of the defendants. Has the Circuit Court jurisdiction to redress such wrong? It is conceded that because of the permanence of the registry the appeal cannot be dismissed under Mills v. Green, 159 U.S. 651, for if registered on the permanent registry the plaintiff can vote at all future elections.

Whether the plaintiff's remedy was at law or in equity, cannot *489 be considered on this appeal. It was so decided in Smith v. McKay, 161 U.S. 355, the authority of which is not in terms denied in the opinion of the majority, although by the decision it is practically disregarded. The certificate of the trial judge stated that "the only question considered and decided by the court in dismissing the bill of complaint was, whether upon the bill and demurrer thereto a case is presented of which this court has jurisdiction under the Constitution or laws of the United States."

The act of Congress authorizing appeals directly from the Circuit Courts to this court, 26 Stat. 827, provides that:

"In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision."

In Smith v. McKay, we said (p. 358):

"When the requisite citizenship of the parties appears, and the subject matter is such that the Circuit Court is competent to deal with it, the jurisdiction of that court attaches, and whether the court should sustain the complainant's prayer for equitable relief, or should dismiss the bill with leave to bring an action at law, either would be a valid exercise of jurisdiction. If any error were committed in the exercise of such jurisdiction, it could only be remedied by an appeal to the Circuit Court of Appeals."

See also Tucker v. McKay, 164 U.S. 701; Murphy v. Colorado Paving Company,166 U.S. 719; Shepard v. Adams, 168 U.S. 618, 622; Building & Loan Association v. Price, 169 U.S. 45, in which we said:

"The complainant appealed to this court, which appeal was allowed and granted solely upon the question of the jurisdiction of the Circuit Court, and that question alone has been certified. Whether the bill shows facts sufficient to invoke the consideration of a court of equity is not such a question of jurisdiction as is referred to in the Judiciary Act of March 3, 1891, c. 517, and we have therefore no concern with that question." Blythe Company v. Blythe, 172 U.S. 644; Blythe v. Hinckley,173 U.S. 501, 506, from which I quote: "Appeals or writs of error may be taken directly from the Circuit Courts to this court in *490 cases in which the jurisdiction of those courts is in issue, that is, their jurisdiction as Federal courts, the question alone of jurisdiction being certified to this court. The Circuit Court held that the remedy was at law and not in equity. That conclusion was not a decision that the Circuit Court had no jurisdiction as a court of the United States."

A still more significant case is Huntington v. Laidley, 176 U.S. 668. In that case proceedings had been had in the courts of the State resulting in a final determination of the controversy. Subsequently this action was commenced in the Federal court, and the final decision of the state courts was pleaded as res judicata. The Circuit Court dismissed the suit for want of jurisdiction, and certified the question to this court. I thought it was sacrificing substance to form to reverse the judgment of dismissal when it was apparent that the controversy had been settled by the decisions in the state court, and, therefore, could not rightfully be relitigated in the Federal court. But this court held that the only question to be considered was that of jurisdiction, saying (p. 679):

"Under the circumstances of this case, the question whether the proceedings in any or all of the suits, at law or in equity, in the state court, afforded a defence — either by way of res adjudicata, or because of any control acquired by the state court over the subject matter — to this bill in the Circuit Court of the United States, was not a question affecting the jurisdiction of that court, but was a question affecting the merits of the cause, and as such to be tried and determined by that court in the exercise of its jurisdiction. The Circuit Court of the United States cannot, by treating a question of merits as a question of jurisdiction, enable this court, upon a direct appeal on the question of jurisdiction only, to decide the question of merits, except in so far as it bears upon the question whether the court below had or had not jurisdiction of the case. In any aspect of the case, the decree of the Circuit Court of the United States, dismissing the suit for want of jurisdiction, must be reversed, and the cause remanded to that court for further proceedings therein."

Although the statute and these decisions thus expressly limit the range of inquiry on a certificate of jurisdiction to the question *491 of jurisdiction, is is held that because there is a constitutional question shown in the pleadings, the certificate may be ignored and the entire case presented to this court for consideration. In other words, although the plaintiff, by his method of appeal, following the provisions of the statute, limited the inquiry to the matter of jurisdiction, this court will ignore such limit and treat the case as coming here on a general appeal, which he did not take. This conclusion seems to me to practically destroy the statute and overrule the prior decisions, for the jurisdiction of Federal courts primarily rests on the Constitution of the United States and the extent of their jurisdiction is determined by its provisions. Hence every case coming up on a certificate of jurisdiction may be held to present a constitutional question and be open for full inquiry in respect to all matters involved.

Neither can I assent to the proposition that the case presented by the plaintiff's bill is not strictly a legal one and entitling a party to a judicial hearing and decision. He alleges that he is a citizen of Alabama, entitled to vote; that he desired to vote at an election for representative in Congress; that without registration he could not vote, and that registration was wrongfully denied him by the defendants. That many others were similarly treated does not destroy his rights or deprive him of relief in the courts. That such relief will be given has been again and again affirmed in both National and state courts.

That the United States Circuit Court has jurisdiction of an action like this seems to me to result inevitably from prior decisions of this court. Without stopping to notice in detail the cases of Ex parte Siebold, 100 U.S. 371; Ex parte Yarbrough, 110 U.S. 651, and In re Coy, 127 U.S. 731, in which the general jurisdiction of Federal courts over matters involved in the election of national officers is affirmed, I refer to two recent cases which bear directly upon the present question. Wiley v. Sinkler,179 U.S. 58, was an action brought in the Circuit Court of the United States by the plaintiff to recover damages of an election board for wilfully rejecting his vote for a member of the House of Representatives. We held that the court had jurisdiction, and said (p. 64):*492 "This action is brought against election officers to recover damages for their rejection of the plaintiff's vote for a member of the House of Representatives of the United States. The complaint, by alleging that the plaintiff was at the time, under the constitution and laws of the State of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the State, shows that the action is brought under the Constitution and laws of the United States. The damages are laid at the sum of $2500. What amount of damages the plaintiff shall recover in such an action is peculiarly appropriate for the determination of a jury, and no opinion of the court upon that subject can justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the Circuit Court. Barry v. Edmunds, 116 U.S. 550; Scott v. Donald, 165 U.S. 58, 89; Vance v. W.A. Vandercook Co., 170 U. 468, 472; North American Co. v. Morrison, 178 U.S. 262, 267. The Circuit Court therefore clearly had jurisdiction of this action, and we are brought to the consideration of the other objections presented by the demurrer to the complaint."

Again, in Swafford v. Templeton, 185 U.S. 487, which, like the former case, was one brought in the Circuit Court of the United States to recover damages for the alleged wrongful refusal by the defendants as election officers to permit the plaintiff to vote at a national election for a member of the House of Representatives, it was held that the court had jurisdiction. Here, too, we said, after referring to Wiley v. Sinkler (p. 492):

"It is manifest from the context of the opinion in the case just referred to that the conclusion that the cause was one arising under the Constitution of the United States was predicated on the conception that the action sought the vindication or protection of the right to vote for a member of Congress, a right, as declared in Ex parte Yarbrough, 110 U.S. 655, 664, `fundamentally based upon the Constitution of the United States, which created the office of member of Congress, and declared that it should be elective, and pointed out the means of ascertaining who should be electors.' That is to say, the ruling was that the case was equally one arising under the Constitution or laws of the United States, whether the illegal act complained *493 of arose from a charged violation of some specific provision of the Constitution or laws of the United States, or from the violation of a state law which affected the exercise of the right to vote for a member of Congress, since the Constitution of the United States had adopted, as the qualifications of electors for members of Congress, those prescribed by the State for electors of the most numerous branch of the legislature of the State. It results from what has just been said that the court erred in dismissing the action for want of jurisdiction, since the right which it was claimed had been unlawfully invaded was one in the very nature of things arising under the Constitution and laws of the United States, and that this inhered in the very substance of the claim. It is obvious from an inspection of the certificate that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States."

It seems to me nothing need be added to these decisions, and unless they are to be considered as overruled they are decisive of this case.

MR. JUSTICE BROWN also dissents.

Toyosaburo Korematsu v. United States.

Argued Oct. 11, 12, 1944.

Decided Dec. 18, 1944.

Rehearing Denied Feb. 12, 1945.

See 324 U.S. 885, 65 S.Ct. 674.

*215Mr. Wayne M. Collins, of San Francisco, Cal., and Mr. Charles A. Horsky, of Washington, D.C., for petitioner.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of the Commanding General*216 of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a, which provides that

'* * * whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.'

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were sub*217stantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that

'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. * * *'

One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a 'protection against espionage and against sabotage.' In Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude*218 those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.

Here, as in the Hirabayashi case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, 87 L.Ed. 1774,

'* * * we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.'

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of*219 whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.2

We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841; Block v. Hirsh, 256 U.S. 135, 154, 155, 41 S.Ct. 458, 459, 65 L.Ed. 865, 16 A.L.R. 165. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kumezo Kawato, 317 U.S. 69, 73, 63 S.Ct. 115, 117, 87 L.Ed. 58. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory*220 exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

It is argued that on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.

There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time 'until and to the extent that a future proclamation or order should so permit or direct.' 7 Fed.Reg. 2601. That 'future order', the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did 'direct' exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 27 and May 3rd orders, whether he remained in or left the area.

It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had*221 already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as 'assembly centers', in order 'to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration.' Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.

We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear*222 when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. There is no reason why violations of these orders, insofar as they were promulgated pursuant to congressional enactment, should not be treated as separate offenses.

The Endo case (Ex parte Mitsuye Endo) 323 U.S. 283, 65 S.Ct. 208, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected.

Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.

Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion*223 Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for*224 action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified.

Affirmed.

1

9 Cir.,.

2

Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, Part II, 608—726; Final Report, Japanese Evacuation from the West Coast, 1942, 309—327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37—42, 49—58.

Mr. Justice FRANKFURTER, concurring.

According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own.

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.' Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382, 87 L.Ed. 1774 and see Home Bldg. & L. Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an*225 unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. 'The war power of the United States, like its other powers * * * is subject to applicable constitutional limitations', Hamilton v. Kentucky Distilleries, Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047; Id., 155 U.S. 3, 15 S.Ct. 19, 39 L.Ed. 49, and Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

Mr. Justice ROBERTS.

I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.

This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774,*226 nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

The Government's argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave and, so, knowingly and intentionally, defying the order and the Act of Congress.

The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation.

A chronological recitation of events will make it plain that the petitioner's supposed offense did not, in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him therefrom. Critical attention must be given to the dates and sequence of events.

December 8, 1941, the United States declared war on Japan.

February 19, 1942, the President issued Executive Order No. 9066, 1 which, after stating the reason for issuing the*227 order as 'protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities', provided that certain Military Commanders might, in their discretion, 'prescribe military areas' and define their extent, 'from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions' the 'Military Commander may impose in his discretion.'

February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union,—about one-fourth of the total area of the nation.

March 2, 1942, General DeWitt promulgated Public Proclamation No. 1, 2 which recites that the entire Pacific Coast is 'particularly subject to attack, to attempted invasion * * * and, in connection therewith, is subject to espionage and acts of sabotage'. It states that 'as a matter of military necessity' certain military areas and zones are established known as Military Areas Nos. 1 and 2. It adds that 'Such persons or classes of persons as the situation may require' will, by subsequent orders, 'be excluded from all of Military Area No. 1' and from certain zones in Military Area No. 2. Subsequent proclamations were made which, together with Proclamation No. 1, included in such areas and zones all of California, Washington, Oregon, Idaho, Montana, Nevada and Utah, and the southern portion of Arizona. The orders required that if any person of Japanese, German or Italian ancestry residing in Area No. 1 desired to change his habitual residence he must execute and deliver to the authorities a Change of Residence Notice.

San Leandro, the city of petitioner's residence, lies in Military Area No. 1.

*228On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that in which he lived.

March 21, 1942, Congress enacted 3 that anyone who knowingly 'shall enter, remain in, leave, or commit any act in any military area or military zone prescribed * * * by any military commander * * * contrary to the restrictions applicable to any such area or zone or contrary to the order of * * * any such military commander' shall be guilty of a misdemeanor. This is the Act under which the petitioner was charged.

March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra.

March 24, 1942, General DeWitt began to issue a series of exclusion orders relating to specified areas.

March 27, 1942, by Proclamation No. 4, 4 the General recited that 'it is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1 to restrict and regulate such migration'; and ordered that, as of March 29, 1942, 'all alien Japanese and persons of Japanese ancestry who are within the limits of Military Area No. 1, be and they are hereby*229 prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct.' 5

No order had been made excluding the petitioner from the area in which he lived. By Proclamation No. 4 he was, after March 29, 1942, confined to the limits of Area No. 1. If the Executive Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor.

May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 34 6 providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry, both alien and non-alien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, supra. It is important to note that the order, by its express terms, had no application to persons within the bounds 'of an established Assembly Center pursuant to instructions from this Headquarters * * *.' The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution.

*230The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document,—and, in the light of the above recitation, I think it is not,—that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order.

In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing.

June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty and convicted. Sentence was suspended and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 9102 7 establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has*231 been confined either in an Assembly Center, within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Mitsuye Endo, 323 U.S. 283, 65 S.Ct. 208, demonstrate, he was illegally held in custody.

The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34 ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument then is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature,—a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case with the court's the court. I might agree with the court's disposition of the hypothetical case. 8 The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature the Hirabayashi case would be authority for sustaining it.

*232But the facts above recited, and those set forth in Ex parte Metsuye Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality.

As I have said above, the petitioner, prior to his arrest, was faced with two diametrically contradictory orders given sanction by the Act of Congress of March 21, 1942. The earlier of those orders made him a criminal if he left the zone in which he resided; the later made him a criminal if he did not leave.

I had supposed that if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that under these circumstances a conviction for violating one of the orders could not stand.

We cannot shut our eyes to the fact that had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation instead of addressing ourselves to the actualities of the case?

*233These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that where he was subject to two conflicting laws he was not bound, in order to escape violation of one of the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter.

Again it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute but must obey it though he knows it is no law and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.

Moreover, it is beside the point to rest decision in part on the fact that the petitioner, for his own reasons, wished to remain in his home. If, as is the fact he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him, in order to sustain his conviction for violation of another contradictory order.

I would reverse the judgment of conviction.

1

1 7 Fed.Reg. 1407.

2

2 7 Fed.Reg. 2320.

3

3 56 Stat. 173, 18 U.S.C.A. § 97a.

4

4 7 Fed.Reg. 2601.

5

5 The italics in the quotation are mine. The use of the word 'voluntarily' exhibits a grim irony probably not lost on petitioner and others in like case. Either so, or its use was a disingenuous attempt to camouflage the compulsion which was to be applied.

6

6 7 Fed.Reg. 3967.

7

7 Fed.Reg. 2165.

8

8 My agreement would depend on the definition and application of the terms 'temporary' and 'emergency'. No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841.

Mr. Justice MURPHY, dissenting.

This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism.

In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and con*234sideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.

At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.' Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 196, 77 L.Ed. 375.

The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627, 628, 20 L.Ed. 474; Mitchell v. Harmony, 13 How. 115, 134, 135, 14 L.Ed. 75; Raymond v. Thomas, 91 U.S. 712, 716, 23 L.Ed. 434. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast 'all persons of Japanese ancestry, both alien and non-alien,' clearly does not meet that test. Being an obvious racial discrimination, the*235 order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an 'immediate, imminent, and impending' public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.

It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption.

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than*236 bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area.1 In it he refers to all individuals of Japanese descent as 'subversive,' as belonging to 'an enemy race' whose 'racial strains are undiluted,' and as constituting 'over 112,000 potential enemies * * * at large today' along the Pacific Coast.2 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,3 or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not*237 ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be 'a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.'4 They are claimed to be given to 'emperor worshipping ceremonies'5 and to 'dual citizenship.'6 Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,7together with facts as to*238 certain persons being educated and residing at length in Japan.8 It is intimated that many of these individuals deliberately resided 'adjacent to strategic points,' thus enabling them 'to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.' 9 The need for protective custody is also asserted. The report refers without identity to 'numerous incidents of violence' as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the 'situation was fraught with danger to the Japanese population itself' and that the general public 'was ready to take matters into its own hands.'10 Finally, it is intimated, though not directly*239 charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,11 as well as for unidentified radio transmissions and night signalling.

The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.12 A military judg*240ment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.13

The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.

*241No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group 'were unknown and time was of the essence.'14 Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these 'subversive' persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be.

Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,15 a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It*242 seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved—or at least for the 70,000 American citizens—especially when a large part of this number represented children and elderly men and women. 16 Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals.

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

1

1 Final Report, Japanese Evacuation from the West Coast, 1942, by Lt.Gen. J. L. De Witt. This report is dated June 5, 1943, but was not made public until January, 1944.

2

Further evidence of the Commanding General's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739—40 (78th Cong., 1st Sess.):

I don't want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. * * * The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. * * * But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. * * *'

3

3 The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that 'while it was believed that some were loyal, it was known that many were not.' (Italics added.)

4

Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States.

5

5. Final Report, pp. 10—11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown.

6

Final Report, p. 22. The charge of 'dual citizenship' springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Freeman, 'Genesis, Exodus, and Leviticus; Genealogy, Evacuation, and Law,' 28 Cornell L.Q. 414, 447—8, and authorities there cited; McWilliams, Prejudice, 123—4 (1944).

7

Final Report, pp. 12. We have has various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121—3 (1944).

8

Final Report, pp. 13. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement—the actions and membership of which are well known to our Government agents.

9

Final Report, p. 10 see also pp. vii, 9, 15—17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, 119 121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59—93.

10

Final Report, pp. 8. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1—2. Cf. House Report No. 2124 (77th Cong., 2d Sess.) 145—7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944).

11

Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942—a considerable time after the Japanese American had been evacuated from their home and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3.

12

Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154—6; McWilliams, Prejudice, 126—8 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower-Shipper Association, has frankly admitted that 'We're charged with wanting to get rid of the Japs for selfish reasons. We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. * * * They undersell the white man in the markets. * * * They work their women and children while the white farmer has to pay wages for his help,. If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either.' Quoted by Taylor in his article 'The People Nobody Wants,' 214 Sat. Eve. Post 24, 66 (May 9, 1942).

13

13 See notes 4—12, supra.

14

Final Report, p. vii; see also p. 18.

15

The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, 'The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.' Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage.

16

During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a 'friendly enemy.' About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, 'The Enemy Alien Problem in the Present War,' 34 Amer. Journ. of Int. Law 443, 444—46; House Report No. 2124 (77th Cong., 2d Sess.), 280—1.

Mr. Justice JACKSON, dissenting.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by*243 residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, § 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should*244 enact such a criminal law, I should suppose this Court would refuse to enforce it.

But the 'law' which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine.

It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.

But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is*245 what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a farm more*246 subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.'1 A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience.

In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language*247 will do. He said: 'Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.' 320 U.S. at page 101, 63 S.Ct. at page 1386, 87 L.Ed. 1774. 'We decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.' 320 U.S. at page 102, 63 S.Ct. at page 1386, 87 L.Ed. 1774. And again: 'It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.' 320 U.S. at page 105, 63 S.Ct. at page 1387, 87 L.Ed. 1774. (Italics supplied.) However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.

*248Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner.

1

Nature of the Judicial Process, p. 51.

Brown et al. v. Board of Education of Topeka, Shawnee County, KN., et al. Briggs et al. v. Elliott et al. Davis et al. v. County School Board of Prince Edward County, VA., et al. Gebhart et al. v. Belton et al.

Reargued Dec. 7, 8, 9, 1953.

Decided May 17, 1954.

[Syllabus from pages 483-484 intentionally omitted]*484 No. 1:

Mr. Robert L. Carter, New York City, for appellants Brown and others.

Mr. Paul E. Wilson, Topeka, Kan., for appellees Board of Education of Topeka and others.

Nos. 2, 4:

Messrs. Spottswood Robinson III, Thurgood Marshall, New York City, for appellants Briggs and Davis and others.

Messrs. John W. Davis,*485 T. Justin Moore, J. Lindsay Almond, Jr., Richmond, Va., for appellees Elliott and County School Board of Prince Edward County and others.

Asst. Atty. Gen. J. Lee Rankin for United States amicus curiae by special leave of Court.

No. 10:

Mr. H. Albert Young, Wilmington, Del., for petitioners Gebhart et al.

Mr. Jack Greenberg, Thurgood Marshall, New York City, for respondents Belton et al.

*486Mr. Chief Justice WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.1*487 In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance,*488 they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called 'separate but equal' doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not 'equal' and cannot be made 'equal,' and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.2 Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.3*489 Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time.4 In the South, the movement toward free common schools, sup*490ported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.5 The doctrine of*491   "separate but equal" did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the 'separate but equal' doctrine in the field of public education.7 In Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, the validity of the doctrine itself was not challenged. 8 In more recent cases, all on the graduate school*492 level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 s.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other 'tangible' factors. 9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout*493 the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra (339 U.S. 629, 70 S.Ct. 850), in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on 'those qualities which are incapable of objective measurement but which make for greatness in a law school.' In McLaurin v. Oklahoma State Regents, supra (339 U.S. 637, 70 S.Ct. 853), the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: '* * * his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.'*494 Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

'Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.' 10

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.11 Any lan*495guage in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. 12

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.13 The Attorney General*496 of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.14

It is so ordered.

Cases ordered restored to docket for further argument on question of appropriate decrees.

1

In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan.Gen.Stat.1949, § 72—1724. Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C.Const. Art. XI, § 7; S.C.Code 1942, § 5377. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admis-

sion to the white schools during the equalization program. 98 F.Supp. 529. This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F.Supp. 920. The case is again here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const. § 140; Va.Code 1950, § 22—221. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to 'proceed with all reasonable diligence and dispatch to remove' the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const. Art. X, § 2; Del.Rev.Code, 1935, § 2631, 14 Del.C. § 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del.Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor's decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition.

2

344 U.S. 1, 73 S.Ct. 1, 97 L.Ed. 3, Id., 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152, Gebhart v. Belton, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689.

3

345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The Attorney General of the United States participated both Terms as amicus curiae.

4

For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II: Cubberley, Public Education in the United States (1934 ed.), cc. II—XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269—275; Cubberley, supra, at 288—339, 408—431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (e.g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408—423. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id., at 427—428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112—132, 175—195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563—565.

5

In re Slaughter-House Cases, 1873, 16 Wall. 36, 67—72, 21 L.Ed. 394; Strauder v. West Virginia, 1880, 100 U.S. 303, 307—308, 25 L.Ed. 664.

'It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored, exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.'

See also State of Virginia v. Rives, 1879, 100 U.S. 313, 318, 25 L.Ed. 667; Ex parte Virginia, 1879, 100 U.S. 339, 344—345, 25 L.Ed. 676.

6

The doctrine apparently originated in Roberts v. City of Boston, 1850, 5 Cush. 198, 59 Mass. 198, 206, upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.

7

See also Berea College v. Kentucky, 1908, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81.

8

In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school.

9

In the Kansas case, the court below found substantial equality as to all such factors. 98 F.Supp. 797, 798. In the South Carolina case, the court below found that the defendants were proceeding 'promptly and in good faith to comply with the court's decree.' 103 F.Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already 'afoot and progressing,' 103 F.Supp. 337, 341; since then, we have been advised, in the Virginia Attorney General's brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state's equalization program was well under way. 91 A.2d 137, 139.

10

A similar finding was made in the Delaware case: 'I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated.' 87 A.2d 862, 865.

11

K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44—48; Frazier, The Negro in the United States (1949), 674—681. And see generally Myrdal, An American Dilemma (1944).

12

See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, concerning the Due Process Clause of the Fifth Amendment.

13

'4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

'(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

'(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

'5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b),

'(a) should this Court formulate detailed decrees in these cases;

'(b) if so, what specific issues should the decrees reach;

'(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

'(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?'

14

See Rule 42, Revised Rules of this Court, effective July 1, 1954, 28 U.S.C.A.

Bolling et al. v. Sharpe et al.

Argued December 10-11, 1952.

Reargued December 8-9, 1953.

Decided May 17, 1954.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

George E. C. Hayes and James M. Nabrit, Jr. argued the cause for petitioners on the original argument and on the reargument. With them on the briefs were George M. Johnson and Herbert O. Reid, Jr. Charles W. Quick was also on the brief on the reargument.

Milton D. Korman argued the cause for respondents on the original argument and on the reargument. With him on the briefs were Vernon E. West, Chester H. Grayand Lyman J. Umstead.

*498By special leave of Court, Assistant Attorney General Rankin argued the cause on the reargument for the United States, as amicus curiae, urging reversal. With him on the brief were Attorney General Brownell, Philip Elman, Leon Ulman, William J. Lamont and M. Magdelena Schoch. James P. McGranery, then Attorney General, and Philip Elman filed a brief on the original argument for the United States, as amicus curiae, urging reversal.

Briefs of amici curiae supporting petitioners were filed by S. Walter Shine, Sanford H. Bolz and Samuel B. Groner for the American Council on Human Rights et al.; by John Ligtenberg and Selma M. Borchardt for the American Federation of Teachers; and by Phineas Indritz for the American Veterans Committee, Inc.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case challenges the validity of segregation in the public schools of the District of Columbia. The petitioners, minors of the Negro race, allege that such segregation deprives them of due process of law under the Fifth Amendment. They were refused admission to a public school attended by white children solely because of their race. They sought the aid of the District Court for the District of Columbia in obtaining admission. That court dismissed their complaint. The Court granted a writ of certiorari before judgment in the Court of Appeals because of the importance of the constitutional question presented. 344 U. S. 873.

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools.1 The legal problem in the District of Columbia is somewhat *499different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.2

Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.3 As long ago as 1896, this Court declared the principle "that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race."4 And in Buchanan v. Warley, 245 U. S. 60, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law.

Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a *500proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.5 We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.

For the reasons set out in Brown v. Board of Education, this case will be restored to the docket for reargument on Questions 4 and 5 previously propounded by the Court. 345 U. S. 972.

It is so ordered.

1

 Brown v. Board of Education, ante, p. 483.

2

 Detroit Bank v. United States, 317 U. S. 329; Currin v. Wallace, 306 U. S. 1, 13-14; Steward Machine Co. v. Davis, 301 U. S. 548, 585.

3

 Korematsu v. United States, 323 U. S. 214, 216; Hirabayashi v. United States, 320 U. S. 81, 100.

4

 Gibson v. Mississippi, 162 U. S. 565, 591. Cf. Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 198-199.

5

 Cf. Hurd v. Hodge, 334 U. S. 24.

Richard Perry Loving et ux., Appellants, v. Commonwealth of Virginia.

Argued April 10, 1967.

Decided June 12, 1967.

Philip J. Hirschkop, pro hac vice, by special leave of Court, Bernard S. Cohen, Alexandria, Va., for appellants.

R. D. McIlwaine, III, Richmond, Va., for appellee.

William M. Marutani, Philadelphia, Pa., for Japanese American Citizens League, as amicus curiae, by special leave of Court.

*2Mr. Chief Justice WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.1 For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court*3 of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.'

After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia antimiscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.

The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after*4 modifying the sentence, affirmed the convictions.2 The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986, 87 S.Ct. 595, 17 L.Ed.2d 448.

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 20—58 of the Virginia Code:

'Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20—59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.'

Section 20—59, which defines the penalty for miscegenation, provides:

'Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.'

Other central provisions in the Virginia statutory scheme are § 20—57, which automatically voids all marriages between 'a white person and a colored person' without any judicial proceeding,3 and §§ 20—54 and 1—14 which,*5 respectively, define 'white persons' and 'colored persons and Indians' for purposes of the statutory prohibitions.4 The Lovings have never disputed in the course of this litigation that Mrs. Loving is a 'colored person' or that Mr. Loving is a 'white person' within the meanings given those terms by the Virginia statutes.

*6Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications.5 Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. 6 The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a 'white person' marrying other than another 'white person,'7 a prohibition against issuing marriage licenses until the issuing official is satisfied that*7 the applicants' statements as to their race are correct,8 certificates of 'racial composition' to be kept by both local and state registrars,9 and the carrying forward of earlier prohibitions against racial intermarriage.10

I.

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were 'to preserve the racial integrity of its citizens,' and to prevent 'the corruption of blood,' 'a mongrel breed of citizens,' and 'the obliteration of racial pride,' obviously an endorsement of the doctrine of White Supremacy. Id., at 90, 87 S.E.2d, at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element*8 as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

  Because we reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. People of State of New York, 336 U.S. 106, 6 § .Ct. 463, 93 L.Ed. 533 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a non-resident in a storage warehouse, Allied Stores of Ohio,*9 Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that the pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources 'cast some light' they are not sufficient to resolve the problem; '(a)t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.' Brown v. Board of Education of Topeka, 347 U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873 (1954). See also Strauder*10 v. State of West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964).

The State finds support for its 'equal application' theory in the decision of the Court in Pace v. State of Alabama, 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated 'Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.' McLaughlin v. Florida, supra, 379 U.S. at 188, 85 S.Ct. at 286. As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases, 16 Wall. 36, 71, 21 L.Ed. 394 (1873); Strauder v. State of West Virginia, 100 U.S. 303, 307—308 2 5 L.Ed. 664 (1880); Ex parte Virginia, 100 U.S. 339, 344—345, 26 L.Ed. 676 (1880); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

*11There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated '(d)istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.' Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,' Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they 'cannot conceive of a valid legislative purpose * * * which makes the color of a person's skin the test of whether his conduct is a criminal offense.' McLaughlin v. Florida, supra, 379 U.S. at 198, 85 S.Ct. at 292, (Stewart, J., joined by Douglas, J., concurring).

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.11 We have consistently denied*12 the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

II.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. 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.

Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These convictions must be reversed. It is so ordered.

Reversed.

*13 

1

1. Section 1 of the Fourteenth Amendment provides:

'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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

2

206 Va. 924, 147 S.E.2d 78 (1966).

3

Section 20—57 of the Virginia Code provides:

'Marriages void without decree.—All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.' Va.Code Ann. § 20—57 (1960 Repl.Vol.).

4

Section 20—54 of the Virginia Code provides:

'Intermarriage prohibited; meaning of term 'white persons.' It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term 'white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chaper.' Va.Code Ann. § 20—54 (1960 Repl.Vol.).

The exception for persons with less than one-sixteenth 'of the blood of the American Indian' is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by 'the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas * * *.' Plecker, The New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12, at 25—26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case; Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va.L.Rev. 1189, 1202, n. 93 (1966).

Section 1—14 of the Virginia Code provides:

Colored persons and Indians defined.—Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians.' Va.Code Ann. § 1—14 (1960 Repl.Vol.).

5

After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md.Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala.Const., Art. 4, § 102, Ala.Code, Tit. 14, § 360 (1958); Arkansas, Ark.Stat.Ann. § 55—104 (1947); Delaware, Del.Code Ann., Tit. 13, § 101 (1953); Florida, Fla.Const., Art. 16, § 24, F.S.A., Fla.Stat. § 741.11 (1965) F.S.A.; Georgia, Ga.Code Ann. § 53—106 (1961); Kentucky, Ky.Rev.Stat.Ann. § 402.020 (Supp.1966); Louisiana, La.Rev.Stat. § 14:79 (1950); Mississippi, Miss.Const., Art. 14, § 263, Miss.Code Ann. § 459 (1956); Missouri, Mo.Rev.Stat. § 451.020 (Supp.1966), V.A.M.S.; North Carolina, N.C.Const., Art. XIV, § 8, N.C.Gen.Stat. § 14—181 (1953); Oklahoma, Okla.Stat., Tit. 43, § 12 (Supp.1965); South Carolina, S.C.Const., Art. 3, § 33, S.C.Code Ann. § 20—7 (1962); Tennessee, Tenn.Const., Art. 11, § 14, Tenn.Code Ann. § 36 402 (1955); Vernon's Ann.Texas, Tex.Pen.Code, Art. 492 (1952); West Virginia, W.Va.Code Ann. § 4697 (1961).

Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.

The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (1948).

6

For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n. 4.

7

Va.Code Ann. § 20—54 (1960 Repl.Vol.).

8

Va.Code Ann. § 20—53 (1960 Repl.Vol.).

9

Va.Code Ann. § 20—50 (1960 Repl.Vol.).

10

a.Code Ann. § 20—54 (1960 Repl.Vol.).

11

Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, 'An Act to Preserve Racial Integrity,' extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve 'racial integrity.' We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the 'integrity' of all races.

Mr. Justice STEWART, concurring.

I have previously expressed the belief that 'it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.' McLaughlin v. State of Florida, 379 U.S. 184, 198, 85 S.Ct. 283, 292, 13 L.Ed.2d 222 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.

Linda Sidoti Palmore, Petitioner v. Anthony J. Sidoti.

Argued Feb. 22, 1984.

Decided April 25, 1984.

Syllabus

When petitioner and respondent, both Caucasians, were divorced in Florida, petitioner, the mother, was awarded custody of their 3-year-old daughter. The following year respondent sought custody of the child by filing a petition to modify the prior judgment because of changed conditions, namely, that petitioner was then cohabiting with a Negro, whom she later married. The Florida trial court awarded custody to respondent, concluding that the child's best interests would be served thereby. Without focusing directly on the parental qualifications of petitioner, her present husband, or respondent, the court reasoned that although respondent's resentment at petitioner's choice of a black partner was insufficient to deprive petitioner of custody, there would be a damaging impact on the child if she remained in a racially mixed household. The Florida District Court of Appeal affirmed.

Held: The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother. The Constitution cannot control such prejudice, but neither can it tolerate it. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Pp. 431-434.

426 So.2d 34 (Fla. 2 DCA 1982), reversed.

Robert J. Shapiro, Tampa, Fla., for petitioner.

John E. Hawtrey, Bryan, Tex., for respondent.

*430Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to review a judgment of a state court divesting a natural mother of the custody of her infant child because of her remarriage to a person of a different race.

I

When petitioner Linda Sidoti Palmore and respondent Anthony J. Sidoti, both Caucasians, were divorced in May 1980 in Florida, the mother was awarded custody of their 3-year-old daughter.

In September 1981 the father sought custody of the child by filing a petition to modify the prior judgment because of changed conditions. The change was that the child's mother was then cohabiting with a Negro, Clarence Palmore, Jr., whom she married two months later. Additionally, the father made several allegations of instances in which the mother had not properly cared for the child.

After hearing testimony from both parties and considering a court counselor's investigative report, the court noted that the father had made allegations about the child's care, but the court made no findings with respect to these allegations. On the contrary, the court made a finding that "there is no issue as to either party's devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent." App. to Pet. for Cert. 24.

The court then addressed the recommendations of the court counselor, who had made an earlier report "in [another] case coming out of this circuit also involving the social consequences of an interracial marriage. Niles v. Niles, 299 So.2d 162." Id., at 25. From this vague reference to that earlier case, the court turned to the present case and noted the counselor's recommendation for a change in custody because*431 "[t]he wife [petitioner] has chosen for herself and for her child, a life-style unacceptable to the father and to society. . . . The child . . . is, or at school age will be, subject to environmental pressures not of choice." Record 84 (emphasis added).

The court then concluded that the best interests of the child would be served by awarding custody to the father. The court's rationale is contained in the following:

“The father’s evident resentment of the mother’s choice of a black partner is not sufficient to wrest custody from the mother. It is of some significance, however, that the mother did see fit to bring a man into her home and carry on a sexual relationship with him without being married to him. Such action tended to place gratification of her own desires ahead of her concern for the child’s future welfare. This Court feels that despite the strides that have been made in bettering relations between the races in this country, it is inevitable that Melanie will, if allowed to remain in her present situation and attains school age and thus more vulnerable to peer pressures, suffer from the social stigmatization that is sure to come.” App. to Pet. for Cert. 26–27 (emphasis added).

The Second District Court of Appeal affirmed without opinion, 426 So.2d 34 (1982), thus denying the Florida Supreme Court jurisdiction to review the case. See Fla. Const., Art. V, § 3(b)(3); Jenkins v. State, 385 So.2d 1356 (Fla.1980). We granted certiorari, 464 U.S. 913, 104 S.Ct. 271, 78 L.Ed.2d 253 (1983), and we reverse.

II

The judgment of a state court determining or reviewing a child custody decision is not ordinarily a likely candidate for review by this Court. However, the court's opinion, after stating that the "father's evident resentment of the mother's choice of a black partner is not sufficient" to deprive her of custody, then turns to what it regarded as the damaging im*432pact on the child from remaining in a racially mixed household. App. to Pet. for Cert. 26. This raises important federal concerns arising from the Constitution's commitment to eradicating discrimination based on race.

The Florida court did not focus directly on the parental qualifications of the natural mother or her present husband, or indeed on the father's qualifications to have custody of the child. The court found that "there is no issue as to either party's devotion to the child, adequacy of housing facilities, or respectability of the new spouse of either parent." Id., at 24. This, taken with the absence of any negative finding as to the quality of the care provided by the mother, constitutes a rejection of any claim of petitioner's unfitness to continue the custody of her child.

The court correctly stated that the child's welfare was the controlling factor. But that court was entirely candid and made no effort to place its holding on any ground other than race. Taking the court's findings and rationale at face value, it is clear that the outcome would have been different had petitioner married a Caucasian male of similar respectability.

A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed 1 discrimination based on race. See Strauder v. West Virginia, 100 U.S. 303, 307-308, 310, 25 L.Ed. 664 (1880). Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Such classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be "necessary . . . to the accomplishment" of their*433 legitimate purpose, McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222 (1964). See Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967).

The State, of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years. In common with most states, Florida law mandates that custody determinations be made in the best interests of the children involved. Fla.Stat. § 61.13(2)(b)(1) (1983). The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause.

It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.

The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not.2 The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. "Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held." Palmer v. Thompson, 403 U.S. 217, 260-261, 91 S.Ct. 1940, 1962-1963, 29 L.Ed.2d 438 (1971) (WHITE, J., dissenting).

This is by no means the first time that acknowledged racial prejudice has been invoked to justify racial classifications. In Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), for example,*434 this Court invalidated a Kentucky law forbidding Negroes to buy homes in white neighborhoods.

"It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution." Id., at 81, 38 S.Ct., at 20.

Whatever problems racially mixed households may pose for children in 1984 can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.3

The judgment of the District Court of Appeal is reversed.

It is so ordered.

1

The actions of state courts and judicial officers in their official capacity have long been held to be state action governed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Ex parte Virginia, 100 U.S. 339, 346-347, 25 L.Ed. 676 (1880).

2

In light of our holding based on the Equal Protection Clause, we need not reach or resolve petitioner's claim based on the Fourteenth Amendment's Due Process Clause.

3

This conclusion finds support in other cases as well. For instance, in Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963), city officials claimed that desegregation of city parks had to proceed slowly to "prevent interracial disturbances, violence, riots, and community confusion and turmoil." Id., at 535, 83 S.Ct., at 1319. The Court found such predictions no more than "personal speculations or vague disquietudes," id., at 536, 83 S.Ct., at 1320, and held that "constitutional rights may not be denied simply because of hostility to their assertion or exercise," id., at 535, 83 S.Ct., at 1319-1320. In Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963), the Court reversed a Negro defendant's breach-of-peace conviction, holding that "the possibility of disorder by others cannot justify exclusion of persons from a place if they otherwise have a constitutional right (founded upon the Equal Protection Clause) to be present." Id., at 293, 83 S.Ct., at 1246.

Lee, Commissioner of Corrections of Alabama, et al. v. Washington et al.

Argued November 7, 1967.

Decided March 11, 1968.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA.

Nicholas S. Hare, Special Assistant Attorney General of Alabama, argued the cause for appellants. With him on the briefs were MacDonald Gallion, Attorney General, Gordon Madison, Assistant Attorney General, and J. M. Breckenridge.

Charles Morgan, Jr., argued the cause for appellees. With him on the brief were Orzell Billingsley, Jr., and Melvin L. Wulf.

PER CURIAM.

This appeal challenges a decree of a three-judge District Court declaring that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races in prisons and jails, and establishing a schedule for desegregation of these institutions. The State’s contentions that Rule 23 of the Federal Rules of Civil Procedure, which relates to class actions, was violated in this case and that the challenged statutes are not unconstitutional are without merit. The remaining contention of the State is that the specific orders directing desegregation of prisons and *334 jails make no allowance for the necessities of prison security and discipline, but we do not so read the “Order, Judgment and Decree” of the District Court, which when read as a whole we find unexceptionable.

The judgment is affirmed.

MR. JUSTICE BLACK, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART, concurring.

In joining the opinion of the Court, we wish to make explicit something that is left to be gathered only by implication from the Court’s opinion. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails. We are unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court’s firm commitment to the Fourteenth Amendment’s prohibition of racial discrimination.

Abigail Noel Fisher, Petitioner v. University of Texas at Austin et al.

Argued October 10, 2012.

Decided June 24, 2013.

*2414 Bert W. Rein, Washington, DC, Petitioner.

Gregory G. Garre, Washington, DC, for Respondents.

Donald B. Verilli, Jr., for the United States as amicus curiae, by special leave of the Court, supporting the Respondents.

Bert W. Rein, Counsel Of Record, William S. Consovoy, Thomas R. McCarthy, Claire J. Evans, Wiley Rein LLP, Washington, DC, for Petitioner.

Patricia C. Ohlendorf, Vice President for Legal Affairs, The University of Texas at Austin Flawn Academic Center, Austin, TX, Douglas Laycock, University of Virginia *2415 School of Law, Charlottesville, VA, Gregory G. Garre, Counsel of Record, Maureen E. Mahoney, J. Scott Ballenger, Lori Alvino McGill, Katya S. Georgieva, Latham & Watkins LLP, Washington, DC, James C. Ho, Gibson, Dunn & Crutcher LLP, Dallas, TX, for Respondents.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., and THOMAS, J., filed concurring opinions. GINSBURG, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

Justice KENNEDY delivered the opinion of the Court.

The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. Race is not itself assigned a numerical value for each applicant, but the University has committed itself to increasing racial minority enrollment on campus. It refers to this goal as a "critical mass." Petitioner, who is Caucasian, sued the University after her application was rejected. She contends that the University's use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment.

The parties asked the Court to review whether the judgment below was consistent with "this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003)." Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court's grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings.

I

A

Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University is one of the leading institutions of higher education in the Nation. Admission is prized and competitive. In 2008, when petitioner sought admission to the University's entering class, she was 1 of 29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission.

In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant's test scores and academic performance in high school (Academic Index or AI), and the applicant's race. In 1996, this system was held unconstitutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University's consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas, 78 F.3d 932, 955 (1996).

The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate's potential contribution to the University, to be used in conjunction with the Academic Index. This "Personal Achievement Index" (PAI) measures a student's leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student's *2416 background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student's family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs.

The Texas State Legislature also responded to the Hopwood decision. It enacted a measure known as the Top Ten Percent Law, codified at Tex. Educ.Code Ann. § 51.803 (West 2009). Also referred to as H.B. 588, the Top Ten Percent Law grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards.

The University's revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University's entering freshman class was 4.1% African-American and 14.5% Hispanic.

Following this Court's decisions in Grutter v. Bollinger, supra, and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), the University adopted a third admissions program, the 2004 program in which the University reverted to explicit consideration of race. This is the program here at issue. In Grutter, the Court upheld the use of race as one of many "plus factors" in an admissions program that considered the overall individual contribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michigan's undergraduate admissions program, which automatically awarded points to applicants from certain racial minorities.

The University's plan to resume race-conscious admissions was given formal expression in June 2004 in an internal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). Supp. App. 1a. The Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and 24 students. It showed that few of these classes had significant enrollment by members of racial minorities. In addition the Proposal relied on what it called "anecdotal" reports from students regarding their "interaction in the classroom." The Proposal concluded that the University lacked a "critical mass" of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.

To implement the Proposal the University included a student's race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.

Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college — such as Liberal Arts or Engineering — admits students separately. So a student is considered *2417 initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major.

Petitioner applied for admission to the University's 2008 entering class and was rejected. She sued the University and various University officials in the United States District Court for the Western District of Texas. She alleged that the University's consideration of race in admissions violated the Equal Protection Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity's benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the University's admissions plan. 631 F.3d 213, 217-218 (2011).

Over the dissent of seven judges, the Court of Appeals denied petitioner's request for rehearing en banc. See 644 F.3d 301, 303 (C.A.5 2011) (per curiam). Petitioner sought a writ of certiorari. The writ was granted. 565 U.S. ___, 132 S.Ct. 1536, 182 L.Ed.2d 160 (2012).

B

Among the Court's cases involving racial classifications in education, there are three decisions that directly address the question of considering racial minority status as a positive or favorable factor in a university's admissions process, with the goal of achieving the educational benefits of a more diverse student body: Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750; Gratz, supra; and Grutter,539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304. We take those cases as given for purposes of deciding this case.

We begin with the principal opinion authored by Justice Powell in Bakke, supra. In Bakke, the Court considered a system used by the medical school of the University of California at Davis. From an entering class of 100 students the school had set aside 16 seats for minority applicants. In holding this program impermissible under the Equal Protection Clause Justice Powell's opinion stated certain basic premises. First, "decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment." Id., at 287, 98 S.Ct. 2733 (separate opinion). The principle of equal protection admits no "artificial line of a `two-class theory'" that "permits the recognition of special wards entitled to a degree of protection greater than that accorded others." Id., at 295, 98 S.Ct. 2733. It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions "touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest." Id., at 299, 98 S.Ct. 2733.

Next, Justice Powell identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body. Redressing past discrimination could not serve as a compelling interest, because a university's "broad mission [of] education" is incompatible with making the "judicial, legislative, or administrative findings of constitutional or statutory violations" necessary to justify remedial racial classification. Id., at 307-309, 98 S.Ct. 2733.

*2418 The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is "a special concern of the First Amendment." Id., at 312, 98 S.Ct. 2733. Part of "`the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation,'" and this in turn leads to the question of "`who may be admitted to study.'" Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in judgment).

Justice Powell's central point, however, was that this interest in securing diversity's benefits, although a permissible objective, is complex. "It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Bakke, 438 U.S., at 315, 98 S.Ct. 2733 (separate opinion).

In Gratz, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257, and Grutter, supra, the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court reaffirmed his conclusion that obtaining the educational benefits of "student body diversity is a compelling state interest that can justify the use of race in university admissions." Id., at 325, 123 S.Ct. 2325.

As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular admissions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. "Nothing in Justice Powell's opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis." Gratz, supra, at 275, 123 S.Ct. 2411. "To be narrowly tailored, a race-conscious admissions program cannot use a quota system," Grutter, 539 U.S., at 334, 123 S.Ct. 2325, but instead must "remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application," id., at 337, 123 S.Ct. 2325. Strict scrutiny requires the university to demonstrate with clarity that its "purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary ... to the accomplishment of its purpose." Bakke, 438 U.S., at 305, 98 S.Ct. 2733 (opinion of Powell, J.) (internal quotation marks omitted).

While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court's broader equal protection jurisprudence which applies in this context. "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people," Rice v. Cayetano, 528 U.S. 495, 517, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) (internal quotation marks omitted), and therefore "are contrary to our traditions and hence constitutionally suspect," Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). "`[B]ecause racial characteristics so seldom provide a relevant basis for disparate treatment,'" Richmond v. J.A. Croson Co., 488 U.S. 469, 505, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (quoting Fullilove v. Klutznick, 448 U.S. 448, 533-534, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) *2419 (Stevens, J., dissenting)), "the Equal Protection Clause demands that racial classifications... be subjected to the `most rigid scrutiny.'" Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

To implement these canons, judicial review must begin from the position that "any official action that treats a person differently on account of his race or ethnic origin is inherently suspect." Fullilove, supra, at 523, 100 S.Ct. 2758 (Stewart, J., dissenting); McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). Strict scrutiny is a searching examination, and it is the government that bears the burden to prove "`that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate,'" Croson, supra, at 505, 109 S.Ct. 706 (quoting Fullilove, supra, 448 U.S., at 533-535, 100 S.Ct. 2758 (Stevens, J., dissenting)).

II

Grutter made clear that racial "classifications are constitutional only if they are narrowly tailored to further compelling governmental interests." 539 U.S., at 326, 123 S.Ct. 2325. And Grutter endorsed Justice Powell's conclusion in Bakke that "the attainment of a diverse student body ... is a constitutionally permissible goal for an institution of higher education." 438 U.S., at 311-312, 98 S.Ct. 2733(separate opinion). Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications.

According to Grutter, a university's "educational judgment that such diversity is essential to its educational mission is one to which we defer." 539 U.S., at 328, 123 S.Ct. 2325. Grutter concluded that the decision to pursue "the educational benefits that flow from student body diversity," id., at 330, 123 S.Ct. 2325, that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University's conclusion, "`based on its experience and expertise,'" 631 F.3d, at 230 (quoting 645 F.Supp.2d 587, 603 (W.D.Tex.2009)), that a diverse student body would serve its educational goals. There is disagreement about whether Grutterwas consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 2422 (SCALIA, J., concurring); post, at 2423-2424 (THOMAS, J., concurring); post, at 2432-2433 (GINSBURG, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter's holding.

A university is not permitted to define diversity as "some specified percentage of a particular group merely because of its race or ethnic origin." Bakke, supra, at 307, 98 S.Ct. 2733 (opinion of Powell, J.). "That would amount to outright racial balancing, which is patently unconstitutional." Grutter, supra, at 330, 123 S.Ct. 2325. "Racial balancing is not transformed from `patently unconstitutional' to a compelling state interest simply by relabeling it `racial diversity.'" Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 732, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007).

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets *2420 strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that "[t]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose." 539 U.S., at 333, 123 S.Ct. 2325 (internal quotation marks omitted). True, a court can take account of a university's experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes "ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Id., at 337, 123 S.Ct. 2325.

Narrow tailoring also requires that the reviewing court verify that it is "necessary" for a university to use race to achieve the educational benefits of diversity. Bakke, supra, at 305, 98 S.Ct. 2733 This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although "[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative," strict scrutiny does require a court to examine with care, and not defer to, a university's "serious, good faith consideration of workable race-neutral alternatives." See Grutter, 539 U.S., at 339-340, 123 S.Ct. 2325 (emphasis added). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If "`a nonracial approach... could promote the substantial interest about as well and at tolerable administrative expense,'" Wygant v. Jackson Bd. of Ed.,476 U.S. 267, 280, n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (quoting Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum. L.Rev. 559, 578-579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university's adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.

Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only "whether [the University's] decision to reintroduce race as a factor in admissions was made in good faith." 631 F.3d, at 236. And in considering such a challenge, the court would "presume the University acted in good faith" and place on petitioner the burden of rebutting that presumption. Id., at 231-232. The Court of Appeals held that to "second-guess the merits" of this aspect of the University's decision was a task it was "ill-equipped to perform" and that it would attempt only to "ensure that [the University's] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration." Id., at 231. The Court of Appeals thus concluded that "the narrow-tailoring inquiry — like the compelling-interest inquiry — is undertaken with a degree of deference to the Universit[y]." Id., at 232. Because "the efforts of the University have been studied, serious, and of high purpose," the Court of Appeals held that the use of race in the admissions *2421 program fell within "a constitutionally protected zone of discretion." Id., at 231.

These expressions of the controlling standard are at odds with Grutter's command that "all racial classifications imposed by government `must be analyzed by a reviewing court under strict scrutiny.'" 539 U.S., at 326, 123 S.Ct. 2325 (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)). In Grutter, the Court approved the plan at issue upon concluding that it was not a quota, was sufficiently flexible, was limited in time, and followed "serious, good faith consideration of workable race-neutral alternatives." 539 U.S., at 339, 123 S.Ct. 2325. As noted above, see supra, at 2415, the parties do not challenge, and the Court therefore does not consider, the correctness of that determination.

Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that "the mere recitation of a `benign' or legitimate purpose for a racial classification is entitled to little or no weight." Croson, 488 U.S., at 500, 109 S.Ct. 706. Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.

The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts. "[T]he analysis and level of scrutiny applied to determine the validity of [a racial] classification do not vary simply because the objective appears acceptable.... While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, n. 9, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982).

The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University's good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. See Adarand, supra, at 237, 115 S.Ct. 2097. Unlike Grutter, which was decided after trial, this case arises from cross-motions for summary judgment. In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether this record — and not "simple ... assurances of good intention," Croson, supra, at 500, 109 S.Ct. 706— is sufficient is a question for the Court of Appeals in the first instance.

* * *

Strict scrutiny must not be "`strict in theory, but fatal in fact,'" Adarand, supra, at 237, 115 S.Ct. 2097; see also Grutter, supra, at 326, 123 S.Ct. 2325. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that "encompasses a ... broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Bakke, 438 U.S., at 315, 98 S.Ct. 2733 *2422 (opinion of Powell, J.). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice KAGAN took no part in the consideration or decision of this case.

Justice SCALIA, concurring.

I adhere to the view I expressed in Grutter v. Bollinger: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception." 539 U.S. 306, 349, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (opinion concurring in part and dissenting in part). The petitioner in this case did not ask us to overrule Grutter's holding that a "compelling interest" in the educational benefits of diversity can justify racial preferences in university admissions. Tr. of Oral Arg. 8-9. I therefore join the Court's opinion in full.

Justice THOMAS, concurring.

I join the Court's opinion because I agree that the Court of Appeals did not apply strict scrutiny to the University of Texas at Austin's (University) use of racial discrimination in admissions decisions. Ante, at 2415. I write separately to explain that I would overrule Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and hold that a State's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

I

A

The Fourteenth Amendment provides that no State shall "deny to any person ... the equal protection of the laws." The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. "At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups." Missouri v. Jenkins, 515 U.S. 70, 120-121, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (THOMAS, J., concurring). "It is for this reason that we must subject all racial classifications to the strictest of scrutiny." Id., at 121, 115 S.Ct. 2038.

Under strict scrutiny, all racial classifications are categorically prohibited unless they are "`necessary to further a compelling governmental interest'" and "narrowly tailored to that end." Johnson v. California, 543 U.S. 499, 514, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (quoting Grutter, supra, at 327, 123 S.Ct. 2325). This most exacting standard "has proven automatically fatal" in almost every case. Jenkins, supra, at 121, 115 S.Ct. 2038 (THOMAS, J., concurring). And rightly so. "Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that [racial] classifications ultimately have a destructive impact on the individual and our society." Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 240, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (THOMAS, J., concurring in part and concurring in judgment). "The Constitution abhors classifications based on race" because "every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all." Grutter, supra, at 353, 123 S.Ct. 2325 (THOMAS, J., concurring in part and dissenting in part).

B

1

The Court first articulated the strict-scrutiny standard in Korematsu v. United *2423States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). There, we held that "[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id., at 216, 65 S.Ct. 193.1 Aside from Grutter, the Court has recognized only two instances in which a "[p]ressing public necessity" may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at "all persons of Japanese ancestry" on the grounds that the Nation was at war with Japan and that the order had "a definite and close relationship to the prevention of espionage and sabotage." 323 U.S., at 217-218, 65 S.Ct. 193. Second, the Court has recognized that the government has a compelling interest in remedying past discrimination for which it is responsible, but we have stressed that a government wishing to use race must provide "a `strong basis in evidence for its conclusion that remedial action [is] necessary.'" Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 504, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion)).

In contrast to these compelling interests that may, in a narrow set of circumstances, justify racial discrimination, the Court has frequently found other asserted interests insufficient. For example, in Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), the Court flatly rejected a claim that the best interests of a child justified the government's racial discrimination. In that case, a state court awarded custody to a child's father because the mother was in a mixed-race marriage. The state court believed the child might be stigmatized by living in a mixed-race household and sought to avoid this perceived problem in its custody determination. We acknowledged the possibility of stigma but nevertheless concluded that "the reality of private biases and the possible injury they might inflict" do not justify racial discrimination. Id., at 433, 104 S.Ct. 1879. As we explained, "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Ibid.

Two years later, in Wygant, supra, the Court held that even asserted interests in remedying societal discrimination and in providing role models for minority students could not justify governmentally imposed racial discrimination. In that case, a collective-bargaining agreement between a school board and a teacher's union favored teachers who were "`Black, American Indian, Oriental, or of Spanish descendancy.'" Id., at 270-271, and n. 2, 106 S.Ct. 1842 (plurality opinion). We rejected the interest in remedying societal discrimination because it had no logical stopping point. Id., at 276, 106 S.Ct. 1842. We similarly rebuffed as inadequate the interest in providing role models to minority students and added that the notion that "black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954)." Ibid.

2

Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. *2424 The reason it advanced did not concern protecting national security or remedying its own past discrimination. Instead, the Law School argued that it needed to discriminate in admissions decisions in order to obtain the "educational benefits that flow from a diverse student body." 539 U.S., at 317, 123 S.Ct. 2325. Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School's determination that this interest was sufficiently compelling to justify racial discrimination. Id., at 325, 123 S.Ct. 2325.

I dissented from that part of the Court's decision. I explained that "only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a `pressing public necessity'" sufficient to satisfy strict scrutiny. Id., at 353, 123 S.Ct. 2325. Cf. Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimination); J.A. Croson, supra, at 521, 109 S.Ct. 706 (SCALIA, J., concurring in judgment) ("At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb ... can justify [racial discrimination]"). I adhere to that view today. As should be obvious, there is nothing "pressing" or "necessary" about obtaining whatever educational benefits may flow from racial diversity.

II

A

The University claims that the District Court found that it has a compelling interest in attaining "a diverse student body and the educational benefits flowing from such diversity." Brief for Respondents 18. The use of the conjunction, "and," implies that the University believes its discrimination furthers two distinct interests. The first is an interest in attaining diversity for its own sake. The second is an interest in attaining educational benefits that allegedly flow from diversity.

Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible "racial balancing." 539 U.S., at 329-330, 123 S.Ct. 2325 ("The Law School's interest is not simply `to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.' That would amount to outright racial balancing, which is patently unconstitutional" (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); citation omitted)); see also id., at 307, 98 S.Ct. 2733 ("Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids"). Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.

Unfortunately for the University, the educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950's, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education,347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the alleged educational benefits of diversity *2425 cannot justify racial discrimination today.

1

Our desegregation cases establish that the Constitution prohibits public schools from discriminating based on race, even if discrimination is necessary to the schools' survival. In Davis v. School Bd. of Prince Edward Cty., decided with Brown, supra, the school board argued that if the Court found segregation unconstitutional, white students would migrate to private schools, funding for public schools would decrease, and public schools would either decline in quality or cease to exist altogether. Brief for Appellees in Davis v. School Bd. of Prince Edward Cty., O.T. 1952, No. 191, p. 30 (hereinafter Brief for Appellees in Davis) ("Virginians ... would no longer permit sizeable appropriations for schools on either the State or local level; private segregated schools would be greatly increased in number and the masses of our people, both white and Negro, would suffer terribly.... [M]any white parents would withdraw their children from the public schools and, as a result, the program of providing better schools would be abandoned" (internal quotation marks omitted)). The true victims of desegregation, the school board asserted, would be black students, who would be unable to afford private school. See id., at 31 ("[W]ith the demise of segregation, education in Virginia would receive a serious setback. Those who would suffer most would be the Negroes who, by and large, would be economically less able to afford the private school"); Tr. of Oral Arg. in Davis v. School Bd. of Prince Edward Cty., O.T. 1954, No. 3, p. 208 ("What is worst of all, in our opinion, you impair the public school system of Virginia and the victims will be the children of both races, we think the Negro race worse than the white race, because the Negro race needs it more by virtue of these disadvantages under which they have labored. We are up against the proposition: What does the Negro profit if he procures an immediate detailed decree from this Court now and then impairs or mars or destroys the public school system in Prince Edward County").2

Unmoved by this sky-is-falling argument, we held that segregation violates the principle of equality enshrined in the Fourteenth Amendment. See Brown, supra, at 495, 74 S.Ct. 686 ("[I]n the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal"); see also Allen v. School Bd. of Prince Edward Cty., 249 F.2d 462, 465 (C.A.4 1957) (per curiam) ("The fact that the schools might be closed if the order were enforced is no reason for not enforcing it. A person may not be denied enforcement of rights to *2426 which he is entitled under the Constitution of the United States because of action taken or threatened in defiance of such rights"). Within a matter of years, the warning became reality: After being ordered to desegregate, Prince Edward County closed its public schools from the summer of 1959 until the fall of 1964. See R. Sarratt, The Ordeal of Desegregation 237 (1966). Despite this fact, the Court never backed down from its rigid enforcement of the Equal Protection Clause's antidiscrimination principle.

In this case, of course, Texas has not alleged that the University will close if it is prohibited from discriminating based on race. But even if it had, the foregoing cases make clear that even that consequence would not justify its use of racial discrimination. It follows, a fortiori, that the putative educational benefits of student body diversity cannot justify racial discrimination: If a State does not have a compelling interest in the existence of a university, it certainly cannot have a compelling interest in the supposed benefits that might accrue to that university from racial discrimination. See Grutter, 539 U.S., at 361, 123 S.Ct. 2325 (opinion of THOMAS, J.) ("[A] marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest either in its existence or in its current educational and admissions policies"). If the Court were actually applying strict scrutiny, it would require Texas either to close the University or to stop discriminating against applicants based on their race. The Court has put other schools to that choice, and there is no reason to treat the University differently.

2

It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. See, e.g., Brief for Respondents 6 (arguing that student body diversity "prepares students to become the next generation of leaders in an increasingly diverse society"). The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. See, e.g., Brief for Respondents in Sweatt 96 ("[A] very large group of Northern Negroes [comes] South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more `secure' at a college of his own people"); Brief for Appellees in Davis 25-26 ("The Negro child gets an opportunity to participate in segregated schools that I have never seen accorded to him in non-segregated schools. He is important, he holds offices, he is accepted by his fellows, he is on athletic teams, he has a full place there" (internal quotation marks omitted)). This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University's racial discrimination cannot be justified on the ground that it will produce better leaders.

*2427 The University also asserts that student body diversity improves interracial relations. See, e.g., Brief for Respondents 6 (arguing that student body diversity promotes "cross-racial understanding" and breaks down racial and ethnic stereotypes). In this argument, too, the University repeats arguments once marshaled in support of segregation. See, e.g., Brief for Appellees in Davis 17 ("Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races"); id., at 25 ("If segregation be stricken down, the general welfare will be definitely harmed... there would be more friction developed" (internal quotation marks omitted)); Brief for Respondents in Sweatt 93 ("Texas has had no serious breaches of the peace in recent years in connection with its schools. The separation of the races has kept the conflicts at a minimum"); id., at 97-98 ("The legislative acts are based not only on the belief that it is the best way to provide education for both races, and the knowledge that separate schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare"); Brief for Appellees in Briggs 32 ("The southern Negro, by and large, does not want an end to segregation in itself any more than does the southern white man. The Negro in the South knows that discriminations, and worse, can and would multiply in such event" (internal quotation marks omitted)). We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950), where we held that segregation would be unconstitutional even if white students never tolerated blacks. Id., at 641, 70 S.Ct. 851 ("It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference — a Constitutional difference — between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar"). It is, thus, entirely irrelevant whether the University's racial discrimination increases or decreases tolerance.

Finally, while the University admits that racial discrimination in admissions is not ideal, it asserts that it is a temporary necessity because of the enduring race consciousness of our society. See Brief for Respondents 53-54 ("Certainly all aspire for a colorblind society in which race does not matter.... But in Texas, as in America, `our highest aspirations are yet unfulfilled'"). Yet again, the University echoes the hollow justifications advanced by the segregationists. See, e.g., Brief for State of Kansas on Reargument in Brown v. Board of Education, O.T. 1953, No. 1, p. 56 ("We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal"); Brief for Respondents in Sweatt 94 ("The racial consciousness and feeling which exists today in the minds of many people may be regrettable and unjustified. Yet they are a reality which must be dealt with by the State if it is to preserve harmony and peace and at the same time furnish equal education to both groups"); id., at 96 ("`[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions'"); Brief for Appellees in Briggs 26-27 ("[I]t would be unwise in administrative practice ... to mix the two races in the same schools at the present *2428 time and under present conditions"); Brief for Appellees on Reargument in Briggs v. Elliott, O.T. 1953, No. 2, p. 79 ("It is not `racism' to be cognizant of the fact that mankind has struggled with race problems and racial tensions for upwards of sixty centuries"). But these arguments too were unavailing. The Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the State. See DeFunis v. Odegaard,416 U.S. 312, 342, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (Douglas, J., dissenting)("The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized"). The University's arguments to this effect are similarly insufficient to justify discrimination.3

3

The University's arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University's determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University's assertion that diversity yields educational benefits and the segregationists' assertion that segregation yielded those same benefits. See Grutter, 539 U.S., at 365-366, 123 S.Ct. 2325 (opinion of THOMAS, J.) ("Contained within today's majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected — racial segregation"). Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications.

B

My view of the Constitution is the one advanced by the plaintiffs in Brown: "[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens." Tr. of Oral Arg. in Brown v. Board of Education, O.T. 1952, No. 8, p. 7; see also Juris. Statement in Davis v. School Bd. of Prince Edward Cty., O.T. 1952, No. 191, p. 8 ("[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action"); Brief for Appellants in Brown v. Board of Education, O.T. 1952, No. 8, p. 5 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone"); Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O.T. 1953, p. 65 ("That the Constitution is color blind is our dedicated belief"). The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants *2429 must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.

This principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa Supreme Court held that schools may not discriminate against applicants based on their skin color. In Clark v. Board of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was black, and "public sentiment [was] opposed to the intermingling of white and colored children in the same schools." Id., at 269. The Iowa Supreme Court rejected that flimsy justification, holding that "all the youths are equal before the law, and there is no discretion vested in the board ... or elsewhere, to interfere with or disturb that equality." Id., at 277. "For the courts to sustain a board of school directors ... in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races." Id., at 276. This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.

I would overrule Grutter and hold that the University's admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.

III

While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University's program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. See post, at 2433-2434 (GINSBURG, J., dissenting) ("[G]overnment actors, including state universities, need not be blind to the lingering effects of `an overtly discriminatory past,' the legacy of `centuries of law-sanctioned inequality'"). But "[h]istory should teach greater humility." Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 609, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting). The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

A

Slaveholders argued that slavery was a "positive good" that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U.S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58-59 (2003) ("Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually.... [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good — a positive good"); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115-116 (D. Faust ed. 1981) ("Slavery, as it is said in an eloquent article published in a Southern periodical work ... `has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth'"); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 ("They are elevated from the *2430 condition in which God first created them, by being made our slaves").

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. See, e.g., Brief for Appellees in Briggs 33-34 ("`I have repeatedly seen wise and loving colored parents take infinite pains to force their little children into schools where the white children, white teachers, and white parents despised and resented the dark child, made mock of it, neglected or bullied it, and literally rendered its life a living hell. Such parents want their child to "fight" this thing out, — but, dear God, at what a cost! ... We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted, and where they are happy and inspired, than in thrusting them into hells where they are ridiculed and hated'" (quoting DuBois, Does the Negro Need Separate Schools? 4 J. of Negro Educ. 328, 330-331 (1935))); Tr. of Oral Arg. in Bolling v. Sharpe, O.T. 1952, No. 413, p. 56 ("There was behind these [a]cts a kindly feeling [and] an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted, in a place where they will not be looked upon with hostility, in a place where there will be a receptive atmosphere for learning for both races without the hostility that undoubtedly Congress thought might creep into these situations"). And they even appealed to the fact that many blacks agreed that separate schools were in the "best interests" of both races. See, e.g., Brief for Appellees in Davis 24-25 ("`It has been my experience, in working with the people of Virginia, including both white and Negro, that the customs and the habits and the traditions of Virginia citizens are such that they believe for the best interests of both the white and the Negro that the separate school is best'").

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. "`[B]enign' carries with it no independent meaning, but reflects only acceptance of the current generation's conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable." See Metro Broadcasting, 497 U.S., at 610, 110 S.Ct. 2997 (O'Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U.S., at 505, 125 S.Ct. 1141 ("We have insisted on strict scrutiny in every context, even for so-called `benign' racial classifications"); Adarand, 515 U.S., at 227, 115 S.Ct. 2097 ("[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny"); J.A. Croson, 488 U.S., at 500, 109 S.Ct. 706 ("Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice"). The University's professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

B

While it does not, for constitutional purposes, matter whether the University's racial discrimination is benign, I note that *2431 racial engineering does in fact have insidious consequences. There can be no doubt that the University's discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University's discriminatory admissions program is even more harmful.

Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University's entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Brief for Richard Sander et al. as Amici Curiae 3-4, and n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.4 Ibid.

Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L.Rev. 1583, 1605-1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its "beneficiaries" are underperforming in the classroom). "It is a fact that in virtually all selective schools ... where racial preferences in admission is practiced, the majority of [black] students end up in the lower quarter of their class." S. Cole & E. Barber, Increasing Faculty Diversity: The Occupational Choices of High-Achieving Minority Students 124 (2003). There is no reason to believe this is not the case at the University. The University and its dozens of amici are deafeningly silent on this point.

Furthermore, the University's discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally. Instead, the University's discrimination has a pervasive shifting effect. See T. Sowell, Affirmative Action Around the World 145-146 (2004). The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there is no evidence that they learn more at the University than they would have learned at other schools for which they were better prepared. Indeed, they may learn less.

The Court of Appeals believed that the University needed to enroll more blacks and Hispanics because they remained "clustered in certain programs." 631 F.3d 213, 240 (C.A.5 2011) ("[N]early a quarter of the undergraduate students in [the University's] College of Social Work are Hispanic, and more than 10% are [black]. In the College of Education, 22.4% of students are Hispanic and 10.1% are [black]"). But racial discrimination may be the cause of, not the solution to, this clustering. There is some evidence that students admitted *2432 as a result of racial discrimination are more likely to abandon their initial aspirations to become scientists and engineers than are students with similar qualifications who attend less selective schools. See, e.g., Elliott, Strenta, Adair, Matier, & Scott, The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 Research in Higher Educ. 681, 699-701 (1996).5 These students may well drift towards less competitive majors because the mismatch caused by racial discrimination in admissions makes it difficult for them to compete in more rigorous majors.

Moreover, the University's discrimination "stamp[s] [blacks and Hispanics] with a badge of inferiority." Adarand, 515 U.S., at 241, 115 S.Ct. 2097 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination. Cf. J. McWhorter, Losing the Race: Self-Sabotage in Black America 248 (2000) ("I was never able to be as proud of getting into Stanford as my classmates could be.... [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted"). And, it taints the accomplishments of all those who are the same race as those admitted as a result of racial discrimination. In this case, for example, most blacks and Hispanics attending the University were admitted without discrimination under the Top Ten Percent plan, but no one can distinguish those students from the ones whose race played a role in their admission. "When blacks [and Hispanics] take positions in the highest places of government, industry, or academia, it is an open question ... whether their skin color played a part in their advancement." See Grutter, 539 U.S., at 373, 123 S.Ct. 2325 (opinion of THOMAS, J.). "The question itself is the stigma — because either racial discrimination did play a role, in which case the person may be deemed `otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those ... who would succeed without discrimination." Ibid. Although cloaked in good intentions, the University's racial tinkering harms the very people it claims to be helping.

* * *

For the foregoing reasons, I would overrule Grutter. However, because the Court correctly concludes that the Court of Appeals did not apply strict scrutiny, I join its opinion.

1

 The standard of "pressing public necessity" is more frequently called a "compelling governmental interest." I use the terms interchangeably.

2

 Similar arguments were advanced unsuccessfully in other cases as well. See, e.g., Brief for Respondents in Sweatt v. Painter, O.T. 1949, No. 44, pp. 94-95 (hereinafter Brief for Respondents in Sweatt) ("[I]f the power to separate the students were terminated,... it would be as a bonanza to the private white schools of the State, and it would mean the migration out of the schools and the turning away from the public schools of the influence and support of a large number of children and of the parents of those children ... who are the largest contributors to the cause of public education, and whose financial support is necessary for the continued progress of public education.... Should the State be required to mix the public schools, there is no question but that a very large group of students would transfer, or be moved by their parents, to private schools with a resultant deterioration of the public schools" (internal quotation marks omitted)); Brief for Appellees in Briggs v. Elliott, O.T. 1952, No. 101, p. 27 (hereinafter Brief for Appellees in Briggs) ("[I]t would be impossible to have sufficient acceptance of the idea of mixed groups attending the same schools to have public education on that basis at all.... [I]t would eliminate the public schools in most, if not all, of the communities in the State").

3

 While the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists, one obvious difference is that the segregationists argued that it was segregation that was necessary to obtain the alleged benefits, whereas the University argues that diversity is the key. Today, the segregationists' arguments would never be given serious consideration. But see M. Plocienniczak, Pennsylvania School Experiments with `Segregation,' CNN (Jan. 27, 2011), http://www.cnn.com/2011/US/01/27/pennsylvania.segregation/index.html?_s=PM:US (as visited June 21, 2013, and available in Clerk of Court's case file). We should be equally hostile to the University's repackaged version of the same arguments in support of its favored form of racial discrimination.

4

 The lowest possible score on the SAT is 600, and the highest possible score is 2400.

5

 The success of historically black colleges at producing graduates who go on to earn graduate degrees in science and engineering is well documented. See, e.g., National Science Foundation, J. Burrelli & A. Rapoport, Info-Brief, Role of HBCUs as Baccalaureate-Origin Institutions of Black S & E Doctorate Recipients 6 (2008) (Table 2) (showing that, from 1997-2006, Howard University had more black students who went on to earn science and engineering doctorates than any other undergraduate institution, and that 7 other historically black colleges ranked in the top 10); American Association of Medical Colleges, Diversity in Medical Education: Facts & Figures 86 (2012) (Table 19) (showing that, in 2011, Xavier University had more black students who went on to earn medical degrees than any other undergraduate institution and that Howard University was second).

JUSTICE GINSBURG, dissenting.

The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316-317, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). The University has steered clear of a quota system *2433 like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats. See id., at 272-275, 315, 319-320, 98 S.Ct. 2733 (opinion of Powell, J.). See also Gratz v. Bollinger, 539 U.S. 244, 293, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (Souter, J., dissenting) ("Justice Powell's opinion in [Bakke] rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class."). And, like so many educational institutions across the Nation,1 the University has taken care to follow the model approved by the Court in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). See 645 F.Supp.2d 587, 609 (W.D.Tex.2009) ("[T]he parties agree [that the University's] policy was based on the [admissions] policy [upheld in Grutter].").

Petitioner urges that Texas' Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz,539 U.S., at 303-304, n. 10, 123 S.Ct. 2411 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from "the disadvantage of deliberate obfuscation." Id., at 297-298, 123 S.Ct. 2411 (dissenting opinion).

Texas' percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. See House Research Organization, Bill Analysis, HB 588, pp. 4-5 (Apr. 15, 1997) ("Many regions of the state, school districts, and high schools in Texas are still predominantly composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of all high schools would provide a diverse population and ensure that a large, well qualified pool of minority students was admitted to Texas universities."). It is race consciousness, not blindness to race, that drives such plans.2 As for holistic review, if universities cannot explicitly include race as a factor, many may "resort to camouflage" to "maintain their minority enrollment." Gratz, 539 U.S., at 304, 123 S.Ct. 2411 (GINSBURG, J., dissenting).

I have several times explained why government actors, including state universities, need not be blind to the lingering effects of "an overtly discriminatory past," the legacy of "centuries of law-sanctioned inequality." Id., at 298, 123 S.Ct. 2411(dissenting opinion). See also Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 272-274, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (dissenting opinion). Among constitutionally permissible options, I remain convinced, "those that candidly disclose their consideration of race [are] preferable to those that conceal it." Gratz,539 U.S., *2434 at 305, n. 11, 123 S.Ct. 2411 (dissenting opinion).

Accordingly, I would not return this case for a second look. As the thorough opinions below show, 631 F.3d 213 (C.A.5 2011); 645 F.Supp.2d 587, the University's admissions policy flexibly considers race only as a "factor of a factor of a factor of a factor" in the calculus, id., at 608; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity, see 631 F.3d, at 225-226; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives, see id., at 226.3 Justice Powell's opinion in Bakke and the Court's decision in Grutter require no further determinations. See Grutter, 539 U.S., at 333-343, 123 S.Ct. 2325; Bakke, 438 U.S., at 315-320, 98 S.Ct. 2733.

The Court rightly declines to cast off the equal protection framework settled in Grutter. See ante, at 2417. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals' judgment and remands for the Court of Appeals to "assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." Ante, at 2421. As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court's Bakke and Grutter pathmarkers, merits our approbation.4

* * *

For the reasons stated, I would affirm the judgment of the Court of Appeals.

1

 See Brief for Amherst College et al. as Amici Curiae 33-35; Brief for Association of American Law Schools as Amicus Curiae 6; Brief for Association of American Medical Colleges et al. as Amici Curiae30-32; Brief for Brown University et al. as Amici Curiae 2-3, 13; Brief for Robert Post et al. as Amici Curiae 24-27; Brief for Fordham University et al. as Amici Curiae 5-6; Brief for University of Delaware et al. as Amici Curiae 16-21.

2

 The notion that Texas' Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell's famous statement: "If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind." T. Arnold, The Symbols of Government 101 (1935) (internal quotation marks omitted). Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.

3

 As the Court said in Grutter v. Bollinger, 539 U.S. 306, 339, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003),"[n]arrow tailoring ... require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." But, Grutter also explained, it does not "require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups." Ibid. I do not read the Court to say otherwise. See ante, at 2420 (acknowledging that, in determining whether a race-conscious admissions policy satisfies Grutter's narrow-tailoring requirement, "a court can take account of a university's experience and expertise in adopting or rejecting certain admissions processes").

4

 Because the University's admissions policy, in my view, is constitutional under Grutter, there is no need for the Court in this case "to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review." 539 U.S., at 346, n., 123 S.Ct. 2325 (GINSBURG, J., concurring). See also Gratz v. Bollinger, 539 U.S. 244, 301, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (GINSBURG, J., dissenting) ("Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.").

Bradwell v. The State.

*133 Mr. Matthew Hale Carpenter, for the plaintiff in error.

No opposing counsel.

*137 Mr. Justice MILLER delivered the opinion of the court.

The record in this case is not very perfect, but it may be fairly taken that the plaintiff asserted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any right granted to citizens of the latter State.

The court having overruled these claims of right founded on the clauses of the Federal Constitution before referred *138 to, those propositions may be considered as properly before this court.

As regards the provision of the Constitution that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable.

The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State whose laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Constitution gave her no protection against its courts or its legislation.

The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont.

While she remained in Vermont that circumstance made her a citizen of that State. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the State of Illinois.

The fourteenth amendment declares that citizens of the United States are citizens of the State within which they reside; therefore the plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois.

We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But the plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the fourteenth amendment.

In regard to that amendment counsel for the plaintiff in this court truly says that there are certain privileges and immunities which belong to a citizen of the United States as such; otherwise it would be nonsense for the fourteenth amendment to prohibit a State from abridging them, and he proceeds to argue that admission to the bar of a State of a person who possesses the requisite learning and character is one of those which a State may not deny.

*139 In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal courts, who were not citizens of the United States or of any State. But, on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State, and as to Federal courts, it would relate to citizenship of the United States.

The opinion just delivered in the Slaughter-House Cases* renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.

It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case.

JUDGMENT AFFIRMED.

*

Supra, p. 36.

Mr. Justice BRADLEY:

I concur in the judgment of the court in this case, by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read.

*140 The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect, but had simply provided that no person should be admitted to practice as attorney or counsellor without having previously obtained a license for that purpose from two justices of the Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the legislature had intended to adopt any different rule.

The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life.

*141 It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married, woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society *142 must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

The humane movements of modern society, which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.

For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.

Mr. Justice SWAYNE and Mr. Justice FIELD concurred in the foregoing opinion of Mr. Justice BRADLEY.

The CHIEF JUSTICE dissented from the judgment of the court, and from all the opinions.

Goesaert et al. v. Cleary et al., Members of the Liquor Control Commission of Michigan.

Argued November 19, 1948.

Decided December 20, 1948.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN.

Anne R. Davidow argued the cause and filed a brief for appellants. Larry S. Davidow was also of counsel.

Edmund E. Shepherd, Solicitor General of Michigan, argued the cause for appellees. With him on the brief were Eugene F. Black, Attorney General, Daniel J. O’Hara and Charles M.A. Martin, Assistant Attorneys General.

*465 MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

As part of the Michigan system for controlling the sale of liquor, bartenders are required to be licensed in all cities having a population of 50,000 or more, but no female may be so licensed unless she be “the wife or daughter of the male owner” of a licensed liquor establishment. Section 19a of Act 133 of the Public Acts of Michigan, 1945, Mich. Stat. Ann. § 18.990 (1) (Cum. Supp. 1947). The case is here on direct appeal from an order of the District Court of three judges, convened under § 266 of the old Judicial Code, now 28 U.S.C. § 2284, denying an injunction to restrain the enforcement of the Michigan law. The claim, denied below, one judge dissenting, 74 F. Supp. 735, and renewed here, is that Michigan cannot forbid females generally from being barmaids and at the same time make an exception in favor of the wives and daughters of the owners of liquor establishments. Beguiling as the subject is, it need not detain us long. To ask whether or not the Equal Protection of the Laws Clause of the Fourteenth Amendment barred Michigan from making the classification the State has made between wives and daughters of owners of liquor places and wives and daughters of non-owners, is one of those rare instances where to state the question is in effect to answer it.

We are, to be sure, dealing with a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare, but centuries before him she played a role in the social life of England. See, e.g., Jusserand, English Wayfaring Life in the Middle Ages, 133, 134, 136-37 (1889). The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes *466 in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. See the Twenty-First Amendment and Carter v. Virginia, 321 U.S. 131. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.

While Michigan may deny to all women opportunities for bartending, Michigan cannot play favorites among women without rhyme or reason. The Constitution in enjoining the equal protection of the laws upon States precludes irrational discrimination as between persons or groups of persons in the incidence of a law. But the Constitution does not require situations “which are different in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147. Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine either actually or argumentatively the mind of Michigan legislators *467 nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling.

It would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of the equal protection of the laws has been applied. The generalities on this subject are not in dispute; their application turns peculiarly on the particular circumstances of a case. Thus, it would be a sterile inquiry to consider whether this case is nearer to the nepotic pilotage law of Louisiana, sustained in Kotch v. Pilot Commissioners, 330 U.S. 552, than it is to the Oklahoma sterilization law, which fell in Skinner v. Oklahoma, 316 U.S. 535. Suffice it to say that “A statute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.” Roschen v. Ward, 279 U.S. 337, 339.

Nor is it unconstitutional for Michigan to withdraw from women the occupation of bartending because it allows women to serve as waitresses where liquor is dispensed. The District Court has sufficiently indicated the reasons that may have influenced the legislature in allowing women to be waitresses in a liquor establishment over which a man’s ownership provides control. Nothing need be added to what was said below as to the other grounds on which the Michigan law was assailed.

Judgment affirmed.

MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY join, dissenting.

While the equal protection clause does not require a legislature to achieve “abstract symmetry”1 or to classify *468 with “mathematical nicety,”2 that clause does require lawmakers to refrain from invidious distinctions of the sort drawn by the statute challenged in this case.3

The statute arbitrarily discriminates between male and female owners of liquor establishments. A male owner, although he himself is always absent from his bar, may employ his wife and daughter as barmaids. A female owner may neither work as a barmaid herself nor employ her daughter in that position, even if a man is always present in the establishment to keep order. This inevitable result of the classification belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids. Since there could be no other conceivable justification for such discrimination against women owners of liquor establishments, the statute should be held invalid as a denial of equal protection.

1

Patsone v. Pennsylvania, 232 U.S. 138, 144.

2

Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-82; see also Tigner v. Texas, 310 U.S. 141, 147; Bain Peanut Co. v. Pinson, 282 U.S. 499, 501; Bryant v. Zimmerman, 278 U.S. 63, 73-77; Miller v. Wilson, 236 U.S. 373, 384.

3

Cf. Skinner v. Oklahoma, 316 U.S. 535; Missouri ex rel. Gaines v. Canada, 305 U.S. 337; McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151; Yick Wo v. Hopkins, 118 U.S. 356. And see Kotch v. Pilot Commissioners, 330 U.S. 552, dissenting opinion 564.

Sally M. Reed v. Cecil R. Reed, Administrator.

Argued October 19, 1971

Decided November 22, 1971

APPEAL FROM THE SUPREME COURT OF IDAHO.

Allen R. Derr argued the cause for appellant. With him on the briefs were Melvin L. Wulf, Ruth Bader Ginsburg, Pauli Murray, and Dorothy Kenyon.

Charles S. Stout argued the cause for appellee. With him on the brief was Myron E. Anderson.

Briefs of amici curiae urging reversal were filed by J. Lee Rankin and Norman Redlich for the City of New York; by Martha W. Griffiths, Phineas Indritz, Leo Kanowitz, Marguerite Rawalt, Sylvia Roberts, and Faith Seidenberg for American Veterans Committee, Inc., et al.; and by Birch Bayh for the National Federation of Business and Professional Women’s Clubs, Inc.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

Richard Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, are the parties to this appeal. Approximately seven months after Richard’s death, his mother, appellant Sally Reed, filed a petition in the Probate Court of Ada County, *72 seeking appointment as administratrix of her son’s estate.1 Prior to the date set for a hearing on the mother’s petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son’s estate. The probate court held a joint hearing on the two petitions and thereafter ordered that letters of administration be issued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court treated §§ 15-312 and 15-314 of the Idaho Code as the controlling statutes and read those sections as compelling a preference for Cecil Reed because he was a male.

Section 15-3122 designates the persons who are entitled to administer the estate of one who dies intestate. In making these designations, that section lists 11 classes of persons who are so entitled and provides, in substance, *73 that the order in which those classes are listed in the section shall be determinative of the relative rights of competing applicants for letters of administration. One of the 11 classes so enumerated is ”[t]he father or mother” of the person dying intestate. Under this section, then, appellant and appellee, being members of the same entitlement class, would seem to have been equally entitled to administer their son’s estate. Section 15-314 provides, however, that

”[o]f several persons claiming and equally entitled [under § 15-312] to administer, males must be preferred to females, and relatives of the whole to those of the half blood.”

In issuing its order, the probate court implicitly recognized the equality of entitlement of the two applicants under § 15-312 and noted that neither of the applicants was under any legal disability; the court ruled, however, that appellee, being a male, was to be preferred to the female appellant “by reason of Section 15-314 of the Idaho Code.” In stating this conclusion, the probate judge gave no indication that he had attempted to determine the relative capabilities of the competing applicants to perform the functions incident to the administration of an estate. It seems clear the probate judge considered himself bound by statute to give preference to the male candidate over the female, each being otherwise “equally entitled.”

Sally Reed appealed from the probate court order, and her appeal was treated by the District Court of the Fourth Judicial District of Idaho as a constitutional attack on § 15-314. In dealing with the attack, that court held that the challenged section violated the Equal Protection Clause of the Fourteenth Amendment3 and was, therefore, *74 void; the matter was ordered “returned to the Probate Court for its determination of which of the two parties” was better qualified to administer the estate.

This order was never carried out, however, for Cecil Reed took a further appeal to the Idaho Supreme Court, which reversed the District Court and reinstated the original order naming the father administrator of the estate. In reaching this result, the Idaho Supreme Court first dealt with the governing statutory law and held that under § 15-312 “a father and mother are `equally entitled’ to letters of administration,” but the preference given to males by § 15-314 is “mandatory” and leaves no room for the exercise of a probate court’s discretion in the appointment of administrators. Having thus definitively and authoritatively interpreted the statutory provisions involved, the Idaho Supreme Court then proceeded to examine, and reject, Sally Reed’s contention that § 15-314 violates the Equal Protection Clause by giving a mandatory preference to males over females, without regard to their individual qualifications as potential estate administrators. 93 Idaho 511, 465 P. 2d 635.

Sally Reed thereupon appealed for review by this Court pursuant to 28 U. S. C. § 1257 (2), and we noted probable jurisdiction. 401 U. S. 934. Having examined the record and considered the briefs and oral arguments of the parties, we have concluded that the arbitrary preference established in favor of males by § 15-314 of the Idaho Code cannot stand in the face of the Fourteenth Amendment’s command that no State deny the equal protection of the laws to any person within its jurisdiction.4

*75 Idaho does not, of course, deny letters of administration to women altogether. Indeed, under § 15-312, a woman whose spouse dies intestate has a preference over a son, father, brother, or any other male relative of the decedent. Moreover, we can judicially notice that in this country, presumably due to the greater longevity of women, a large proportion of estates, both intestate and under wills of decedents, are administered by surviving widows.

Section 15-314 is restricted in its operation to those situations where competing applications for letters of administration have been filed by both male and female members of the same entitlement class established by § 15-312. In such situations, § 15-314 provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause.

In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U. S. 27 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into *76 different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of §§ 15-312 and 15-314.

In upholding the latter section, the Idaho Supreme Court concluded that its objective was to eliminate one area of controversy when two or more persons, equally entitled under § 15-312, seek letters of administration and thereby present the probate court “with the issue of which one should be named.” The court also concluded that where such persons are not of the same sex, the elimination of females from consideration “is neither an illogical nor arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the relative merits . . . of the two or more petitioning relatives . . . .” 93 Idaho, at 514, 465 P. 2d, at 638.

Clearly the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy. The crucial question, however, is whether § 15-314 advances that objective in a manner consistent with the command of the Equal Protection Clause. We hold that it does not. To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be *77 said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

We note finally that if § 15-314 is viewed merely as a modifying appendage to § 15-312 and as aimed at the same objective, its constitutionality is not thereby saved. The objective of § 15-312 clearly is to establish degrees of entitlement of various classes of persons in accordance with their varying degrees and kinds of relationship to the intestate. Regardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective. By providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause. Royster Guano Co. v. Virginia, supra.

The judgment of the Idaho Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

1

In her petition, Sally Reed alleged that her son’s estate, consisting of a few items of personal property and a small savings account, had an aggregate value of less than $1,000.

2

Section 15-312 provides as follows:

“Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, and they are respectively entitled thereto in the following order:

“1. The surviving husband or wife or some competent person whom he or she may request to have appointed.

“2. The children.

“3. The father or mother.

“4. The brothers.

“5. The sisters.

“6. The grandchildren.

“7. The next of kin entitled to share in the distribution of the estate.

“8. Any of the kindred.

“9. The public administrator.

“10. The creditors of such person at the time of death.

“11. Any person legally competent.

“If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate.”

3

The court also held that the statute violated Art. I, § 1, of the Idaho Constitution.

4

We note that § 15-312, set out in n. 2, supra, appears to give a superior entitlement to brothers of an intestate (class 4) than is given to sisters (class 5). The parties now before the Court are not affected by the operation of § 15-312 in this respect, however, and appellant has made no challenge to that section.

We further note that on March 12, 1971, the Idaho Legislature adopted the Uniform Probate Code, effective July 1, 1972. Idaho Laws 1971, c. 111, p. 233. On that date, §§ 15-312 and 15-314 of the present code will, then, be effectively repealed, and there is in the new legislation no mandatory preference for males over females as administrators of estates.

Sharron A. Frontiero and Joseph Frontiero, Appellants, v. Elliot L. Richardson, Secretary of Defense, et al.

Argued Jan. 17, 1973.

Decided May 14, 1973.

Syllabus

A married woman Air Force officer (hereafter appellant) sought increased benefits for her husband as a 'dependent' under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076. Those statutes provide, solely for administrative convenience, that spouses of male members of the uniformed services are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members are not dependents unless they are in fact dependent for over one-half of their support. When her application was denied for failure to satisfy the statutory dependency standard, appellant and her husband brought this suit in District Court, contending that the statutes deprived servicewomen of due process. From that Court's adverse ruling, they took a direct appeal. Held: The judgment is reversed. Pp. 682—691, 691—692, 341 F.Supp. 201, reversed.

*678Joseph J. Levin, Jr., Montgomery, Ala., for appellants.

Ruth B. Ginsburg, New York City, for American Civil Liberties Union, amicus curiae, by special leave of Court.

Samuel Huntington, Washington, D.C., for appellees.

Mr. Justice BRENNAN announced the judgment of the Court in an opinion in which Mr. Justice DOUGLAS, Mr. Justice WHITE, and Mr. Justice MARSHALL join.

The question before us concerns the right of a female member of the uniformed services1 to claim her spouse as a 'dependent' for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a 'dependent' without regard to whether she is in fact dependent upon him for any part of her support. 37 U.S.C. § 401(1); 10 U.S.C. § 1072(2)(A). A servicewoman, on the other hand, may not claim her husband as a 'dependent' under these programs unless he is in fact dependent upon her for over one-half of his sup*679port. 37 U.S.C. § 401; 10 U.S.C. § 1072(2)(C).2 Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. 341 F.Supp. 201 (1972). We noted probable jurisdiction. 409 U.S. 840, 93 S.Ct. 64, 34 L.Ed.2d 78 (1972). We reverse.

I

In an effort to attract career personnel through reenlistment, Congress established, in 37 U.S.C. § 401 et seq., and 10 U.S.C. § 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry.3 Thus, under 37 U.S.C. § 403, a member of the uniformed services with dependents is entitled to an*680 increased 'basic allowance for quarters' and, under 10 U.S.C. § 1076, a member's dependents are provided comprehensive medical and dental care.

Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her 'dependent.' Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support.4 Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment.5 In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent in*681junction against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive.

Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members,6 a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the 'breadwinner' in the family—and the wife typically the 'dependent' partner—'it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members.' 341 F.Supp., at 207. Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District*682 Court speculated that such differential treatment might conceivably lead to a 'considerable saving of administrative expense and manpower.' Ibid.

II

At the outset, appellants contend that classifications based upon sex, like classifications based upon race,7 alienage,8 and national origin,9 are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

In Reed, the Court considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class the statutory preference was invoked and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment.

The Court noted that the Idaho statute 'provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification sub*683ject to scrutiny under the Equal Protection Clause.' 404 U.S., at 75, 92 S.Ct. at 253. Under 'traditional' equal protection analysis, a legislative classification must be sustained unless it is 'patently arbitrary' and bears no rational relationship to a legitimate governmental interest. See Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1372, 4 L.Ed.2d 1435 (1960); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 115o, 1161, 25 L.Ed.2d 491 (1970).

In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since 'men (are) as a rule more conversant with business affairs than . . . women.' 10 Indeed, appellee maintained that 'it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are.'11 And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have 'concluded that in general men are better qualified to act as an administrator than are women.'12

Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. In reaching this result, the Court implicitly rejected appellee's apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provide 'dissimilar treatment for men and women who are . . . similarly situated.' 404 U.S.,*684 at 77, 92 S.Ct., at 254. The Court therefore held that, even though the State's interest in achieving administrative efficiency 'is not without some legitimacy,' '(t)o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the (Constitution) . . ..' Id., at 76, 92 S.Ct. at 254. This departure from 'traditional' rational-basis analysis with respect to sex-based classifications is clearly justified.

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination.13 Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:

'Man is, or should be, women's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and*685 independent career from that of her husband. . . .

'. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.' Bradwell v. State of Illinois, 16 Wall. 130, 141, 21 L.Ed.2d 442 (1873) (Bradley, J., concurring).

As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5—6 (1969); G. Myrdal, An American Dilemma 1073 (20th Anniversary ed. 1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right—which is itself 'preservative of other basic civil and political rights'14—until adoption of the Nineteenth Amendment half a century later.

It is true, of course, that the position of women in America has improved markedly in recent decades.15*686 Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic,16 women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.17 See generally K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Act of 1964, 84 Harv.L.Rev. 1109 (1971).

Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . ..' Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1407, 31 L.Ed.2d 768 (1972). And what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.18 As a result, statutory distinc*687tions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.

We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of 'race, color, religion, sex, or national origin.'19 Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act 'shall discriminate . . . between employees on the basis of sex.'20 And § 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that '(e)quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.'21 Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal*688 branch of Government is not without significance to the question presently under consideration. Cf. Oregon v. Mitchell, 400 U.S. 112, 240, 248—249, 91 S.Ct. 260, 322, 327, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.); Katzenbach v. Morgan, 384 U.S. 641, 648—649, 86 S.Ct. 1717, 1722, 16 L.Ed.2d 828 (1966).

With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.

III

The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 2072, 2076, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent at least, it may fairly be said that these statutes command 'dissimilar treatment for men and women who are . . . similarly situated.' Reed v. Reed, 404 U.S., at 77, 92 S.Ct., at 254.

Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere 'administrative convenience.' In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while hus*689bands rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact.22

The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits.23 And in light of the fact that the*690 dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits rather than through the more costly hearing process,24 the Government's explanation of the statutory scheme is, to say the least, questionable.

In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, 'the Constitution recognizes higher values than speed and efficiency.' Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972). And when we enter the realm of 'strict judicial scrutiny,' there can be no doubt that 'administrative convenience' is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, Solely for the purpose of achieving administrative convenience, necessarily commands 'dissimilar treatment for men and women who are . . . similarly situated,' and therefore involves the 'very kind of arbitrary legislative choice forbidden by the (Constitution) . . ..' Reed v. Reed, 404 U.S., at 77, 76, 92 S.Ct., at 254. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative*691 convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.25

Reversed.

1

The 'uniformed services' include the Army, Navy, Air Force, Marine Corps, Coast Guard, Environmental Science Services Administration, and Public Health Service. 37 U.S.C. § 101(3); 10 U.S.C. § 1072(1).

2

Title 37 U.S.C. § 401 provides in pertinent part:

'In this chapter, 'dependent,' with respect to a member of a uniformed service, means—

'(1) his spouse;

'However, a person is not a dependent of a female member unless he is in fact dependent on her for over one-half of his support . . ..'

10 U.S.C. § 1072(2) provides in pertinent part:

"Dependent,' with respect to a member . . . of a uniformed service, means—

'(A) the wife;

'(C) the husband, if he is in fact dependent on the member . . . for over one-half of his support. . . .'

3

See 102 Cong.Rec. 3849—3850 (Cong. Kilday), 8043 (Sen. Saltonstall); 95 Cong.Rec. 7662 (Cong. Kilday), 7664 (Cong. Short), 7666 (Cong. Havenner), 7667 (Cong. Bates), 7671 (Cong. Price). See also 10 U.S.C. § 1071.

4

Appellant Joseph Frontiero is a full-time student at Huntingdon College in Montgomery, Alabama. According to the agreed stipulation of facts, his living expenses, including his share of the house-hold expenses, total approximately $354 per month. Since he receives $205 per month in veterans' benefits, it is clear that he is not dependent upon appellant Sharron Frontiero for more than one-half of his support.

5

'(W)hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process." Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964); see Shapiro v. Thompson, 394 U.S. 618, 641—642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

6

The housing provisions, set forth in 37 U.S.C. § 401 et seq., were enacted as part of the Career Compensation Act of 1949, which established a uniform pattern of military pay and allowances, consolidating and revising the piecemeal legislation that had been developed over the previous 40 years. See H.R.Rep. No. 779, 81st Cong., 1st Sess.; S.Rep. No. 733, 81st Cong., 1st Sess. The Act apparently retained in substance the dependency definitions of § 4 of the Pay Readjustment Act of 1942 (56 Stat. 361), as amended by § 6 of the Act of September 7, 1944 (58 Stat. 730), which required a female member of the service to demonstrate her spouse's dependency. It appears that this provision was itself derived from unspecified earlier enactments. See S.Rep. No. 917, 78th Cong., 2d Sess., 4.

The medical benefits legislation, 10 U.S.C. § 1071 et seq., was enacted as the Dependents' Medical Care Act of 1956. As such, it was designed to revise and make uniform the existing law relating to medical services for military personnel. It, too, appears to have carried forward, without explanation, the dependency provisions found in other military pay and allowance legislation. See H.R.Rep. No. 1805, 84th Cong., 2d Sess.; S.Rep. No. 1878, 84th Cong., 2d Sess.

7

See Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); McLaughlin v. Florida, 379 U.S. 184, 191—192, 85 S.Ct. 283, 287—288, 13 L.Ed.2d 222 (1964); Bolling v. Sharpe, supra, 347 U.S., at 499, 74 S.Ct., at 694.

8

See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).

9

See Oyama v. California, 332 U.S. 633, 644—646, 68 S.Ct. 269, 274—275, 92 L.Ed. 249 (1948); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943).

10

Brief for Appellee in No. 70—4, O.T. 1971, Reed v. Reed, p. 12.

11

Id., at 12—13.

12

Reed v. Reed, 93 Idaho 511, 514, 465 P.2d 635, 638 (1970).

13

Indeed, the position of women in this country at its inception is reflected in the view expressed by Thomas Jefferson that women should be neither seen nor heard in society's decisionmaking councils. See M. Gruberg, Women in American Politics 4 (1968). See also 2 A. de Tocqueville, Democracy in America (Reeves trans. 1948).

14

Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); see Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Kramer v. Union Free School District, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969); Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886).

15

See generally The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice (1970); L. Kanowitz, Women and the Law: The Unfinished Revolution (1969); A. Montagu, Man's Most Dangerous Myth (4th ed. 1964); The President's Commission on the Status of Women, American Women (1963).

16

See, e.g., Note, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?, 84 Harv.L.Rev. 1499, 1507 (1971).

17

It is true, of course, that when viewed in the abstract, women do not constitute a small and powerless minority. Nevertheless, in part because of past discrimination, women are vastly underrepresented in this Nation's decisionmaking councils. There has never been a female President, nor a female member of this Court. Not a single woman presently sits in the United States Senate, and only 14 women hold seats in the House of Representatives. And, as appellants point out, this underrepresentation is present throughout all levels of our State and Federal Government. See Joint Reply Brief of Appellants and American Civil Liberties Union (Amicus Curiae) 9.

18

See, e.g., Developments in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1173—1174 (1969).

19

42 U.S.C. § 2000e—2(a), (b), (c) (emphasis added). See generally, Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972); Developments in the Law—Employment Discrimination and Title VII of the Civil Rights Act of 1964, 8j Harv.L.Rev. 1109 (1971).

20

29 U.S.C. § 206(d) (emphasis added). See generally Murphy, Female Wage Discrimination: A Study of the Equal Pay Act 1963—1970, 39 U.Cin.L.Rev. 615 (1970).

21

H.R.J.Res. No. 208, 92d Cong., 2d Sess. (1972). In conformity with these principles, Congress in recent years has amended various statutory schemes similar to those presently under consideration so as to eliminate the differential treatment of men and women. See 5 U.S.C. § 2108, as amended, 85 Stat. 644; 5 U.S.C. § 7152, as amended, 85 Stat. 644; 5 U.S.C. § 8341, as amended, 84 Stat. 1961; 38 U.S.C. § 102(b), as amended, 86 Stat. 1092.

22

It should be noted that these statutes are not in any sense designed to rectify the effects of past discrimination against women. See Gruenwald v. Gardner, 390 F.2d 591 (CA2), cert. denied, 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968); cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). On the contrary, these statutes seize upon a group—women—who have historically suffered discrimination in employment, and rely on the effects of this past discrimination as a justification for heaping on additional economic disadvantages. Cf. Gaston County v. United States, 395 U.S. 285, 296—297, 89 S.Ct. 1720, 1725—1726, 23 L.Ed.2d 309 (1969).

23

In 1971, 43% of all women over the age of 16 were in the labor force, and 18% of all women worked full time 12 months per year. See U.S. Women's Bureau, Dept. of Labor, Highlights of Women's Employment & Education 1 (W.B.Pub. No. 72—191, Mar. 1972). Moreover, 41.5% of all married women are employed. See U.S. Bureau of Labor Statistics, Dept. of Labor, Work Experience of the Population in 1971, p. 4 (Summary Special Labor Force Report, Aug. 1972). It is also noteworthy that, while the median income of a male member of the armed forces is approximately $3,686, see The Report of the President's Commission on an All-Volunteer Armed Force 51, 181 (1970), the median income for all women over the age of 14, including those who are not employed, is approximately $2,237. See Statistical Abstract of the United States Table No. 535 (1972), Source: U.S. Bureau of the Census, Current Population Reports, Series P—60, No. 80. Applying the statutory definition of 'dependency' to these statistics, it appears that in the 'median' family, the wife of a male member must have personal expenses of approximately $4,474, or about 75% of the total family income, in order to qualify as a 'dependent.'

24

Tr. of Oral Arg. 27—28.

25

As noted earlier, the basic purpose of these statutes was to provide fringe benefits to members of the uniformed services in order to establish a compensation pattern which would attract career personnel through re- enlistment. See n. 3, supra, and accompanying text. Our conclusion in no wise invalidates the statutory schemes except insofar as they require a female member to prove the dependency of her spouse. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (CA10 1972). See also 1 U.S.C. § 1.

Mr. Justice STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.

Mr. Justice REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, Frontiero v. Laird, 341 F.Supp. 201 (1972).

Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the judgment.

I agree that the challenged statutes constitute an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of Mr. Justice BRENNAN, which would hold that all classifications based upon sex, 'like classifications based upon race, alienage, and national origin,' are 'inherently suspect and must therefore be subjected to close judicial scrutiny.' Ante, at 682. It is unnecessary for the Court in this case to*692 characterize sex as a suspect classification, with all of the far-reaching implications of such a holding. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), which abundantly supports our decision today, did not add sex to the narrowly limited group of classifications which are inherently suspect. In my view, we can and should decide this case on the authority of Reed and reserve for the future any expansion of its rationale.

There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems to me that this reaching out to pre-empt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes.

There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.

Curtis Craig et al., Appellants, v. David Boren, etc., et al.

Argued Oct. 5, 1976.

Decided Dec. 20, 1976.

Rehearing Denied Feb. 22, 1977. See 429 U.S. 1124, 97 S.Ct. 1161.

Syllabus

Appellant Craig, a male then between 18 and 21 years old, and appellant Whitener, a licensed vendor of 3.2% beer, brought this action for declaratory and injunctive relief, claiming that an Oklahoma statutory scheme prohibiting the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18 constituted a gender-based discrimination that denied to males 18-20 years of age the equal protection of the laws. Recognizing that Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, and later cases establish that classification by gender must substantially further important governmental objectives, a three-judge District Court held that appellees' statistical evidence regarding young males' drunk-driving arrests and traffic injuries demonstrated that the gender-based discrimination was substantially related to the achievement of traffic safety on Oklahoma roads. Held :

1. Since only declaratory and injunctive relief against enforcement of the gender-based differential was sought, the controversy has been mooted as to Craig, who became 21 after this Court had noted probable jurisdiction. See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164. P. 192.

2. Whitener has standing to make the equal protection challenge. Pp. 192-197.

(a) No prudential objective thought to be served by limitations of jus tertii standing can be furthered here, where the lower court already has entertained the constitutional challenge and the parties have sought resolution of the constitutional issue. Pp. 193-194.

(b) Whitener in any event independently has established third-party standing. She suffers "injury in fact" since the challenged statutory provisions are addressed to vendors like her, who either must obey the statutory provisions and incur economic injury or disobey the statute and suffer sanctions. In such circumstances, vendors may resist efforts to restrict their operations by advocating the rights of third parties seeking access to their market. See, e. g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349. Pp. 194-197.

3. Oklahoma's gender-based differential constitutes an invidious discrimination against males 18-20 years of age in violation of the Equal Protection Clause. Appellees' statistics (the most relevant of which*191 show only that .18% of females and 2% of males in the 18-20-year-old age group were arrested for driving while under the influence of liquor) do not warrant the conclusion that sex represents an accurate proxy for the regulation of drinking and driving. Pp. 199-204.

4. The operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case. The Court has never recognized that application of that Amendment can defeat an otherwise established claim under the Equal Protection Clause, the principles of which cannot be rendered inapplicable here by reliance upon statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. Pp. 204-210.

399 F.Supp. 1304, reversed.

Frederick P. Gilbert, Tulsa, Okl., for appellants.

James H. Gray, Oklahoma City, Okl., for appellees.

Mr. Justice BRENNAN delivered the opinion of the Court.

The interaction of two sections of an Oklahoma statute, Okla.Stat., Tit. 37, §§ 241 and 245 (1958 and Supp.1976),1*192 prohibits the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18. The question to be decided is whether such a gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment.

This action was brought in the District Court for the Western District of Oklahoma on December 20, 1972, by appellant Craig, a male then between 18 and 21 years of age, and by appellant Whitener, a licensed vendor of 3.2% beer. The complaint sought declaratory and injunctive relief against enforcement of the gender-based differential on the ground that it constituted invidious discrimination against males 18-20 years of age. A three-judge court convened under 28 U.S.C. § 2281 sustained the constitutionality of the statutory differential and dismissed the action. 399 F.Supp. 1304 (1975). We noted probable jurisdiction of appellants' appeal, 423 U.S. 1047, 96 S.Ct. 771, 46 L.Ed.2d 635 (1976). We reverse.

I

We first address a preliminary question of standing. Appellant Craig attained the age of 21 after we noted probable jurisdiction. Therefore, since only declaratory and injunctive relief against enforcement of the gender-based differential is sought, the controversy has been rendered moot as to Craig. See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).2 The question thus arises whether appellant Whitener, the licensed vendor of 3.2% beer, who has a live controversy against enforcement of the statute, may rely upon the equal protection objections of males 18-20 years of age to establish her claim of*193 unconstitutionality of the age-sex differential. We conclude that she may.

Initially, it should be noted that, despite having had the opportunity to do so,3 appellees never raised before the District Court any objection to Whitener's reliance upon the claimed unequal treatment of 18-20-year-old males as the premise of her equal protection challenge to Oklahoma's 3.2% beer law. See 399 F.Supp., at 1306 n. 1. Indeed, at oral argument Oklahoma acknowledged that appellees always "presumed" that the vendor, subject to sanctions and loss of license for violation of the statute, was a proper party in interest to object to the enforcement of the sex-based regulatory provision. Tr. of Oral Arg. 41. While such a concession certainly would not be controlling upon the reach of this Court's constitutional authority to exercise jurisdiction under Art. III, see, e. g., Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); cf. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970), our decisions have settled that limitations on a litigant's assertion of jus tertii are not constitutionally mandated, but rather stem from a salutary "rule of self-restraint" designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative. See, e. g., Barrows v. Jackson, 346 U.S. 249, 255, 257, 73 S.Ct. 1031, 1034, 1035, 97 L.Ed. 1586 (1953); see also Singleton v. Wulff, 428 U.S. 106, 123-124, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (Powell, J., dissenting). These prudential objectives, thought to be enhanced by restrictions on third-party standing, cannot be furthered here, where the lower court already has entertained the relevant constitutional challenge and the parties have sought or at least have never resisted an authoritative constitutional determination. In such circumstances, a decision by us to forgo*194 consideration of the constitutional merits in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence. Moreover, insofar as the applicable constitutional questions have been and continue to be presented vigorously and "cogently," Holden v. Hardy, 169 U.S. 366, 397, 18 S.Ct. 383, 390, 42 L.Ed. 780 (1898), the denial of jus tertii standing in deference to a direct class suit can serve no functional purpose. Our Brother Blackmun's comment is pertinent: "(I)t may be that a class could be assembled, whose fluid membership always included some (males) with live claims. But if the assertion of the right is to be 'representative' to such an extent anyway, there seems little loss in terms of effective advocacy from allowing its assertion by" the present jus tertii champion. Singleton v. Wulff, supra, at 117-118, 96 S.Ct. at 2875.

In any event, we conclude that appellant Whitener has established independently her claim to assert jus tertii standing. The operation of §§ 241 and 245 plainly has inflicted "injury in fact" upon appellant sufficient to guarantee her "concrete adverseness," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), and to satisfy the constitutionally based standing requirements imposed by Art. III. The legal duties created by the statutory sections under challenge are addressed directly to vendors such as appellant. She is obliged either to heed the statutory discrimination, thereby incurring a direct economic injury through the constriction of her buyers' market, or to disobey the statutory command and suffer, in the words of Oklahoma's Assistant Attorney General, "sanctions and perhaps loss of license." Tr. of Oral Arg. 41. This Court repeatedly has recognized that such injuries establish the threshold requirements of a "case or controversy" mandated by Art. III. See, e. g., Singleton v. Wulff, supra, at 113, 96 S.Ct., at 2873 (doctors who receive payments for their abortion services are "classically adverse" to government as payer); Sullivan v. Little Hunting*195 Park, 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969); Barrows v. Jackson, supra, 346 U.S., at 255-256, 73 S.Ct., at 1034-1035.

As a vendor with standing to challenge the lawfulness of §§ 241 and 245, appellant Whitener is entitled to assert those concomitant rights of third parties that would be "diluted or adversely affected" should her constitutional challenge fail and the statutes remain in force. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510 (1965); see Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 432 (1974). Otherwise, the threatened imposition of governmental sanctions might deter appellant Whitener and other similarly situated vendors from selling 3.2% beer to young males, thereby ensuring that "enforcement of the challenged restriction against the (vendor) would result indirectly in the violation of third parties' rights." Warth v. Seldin, 422 U.S. 490, 510, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975). Accordingly, vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function. See, e. g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Sullivan v. Little Hunting Park, supra ; Barrows v. Jackson, supra.4*196 Indeed, the jus tertii question raised here is answered by our disposition of a like argument in Eisenstadt v. Baird, supra. There, as here, a state statute imposed legal duties and disabilities upon the claimant, who was convicted of distributing a package of contraceptive foam to a third party.5 Since the statute was directed at Baird and penalized his conduct, the Court did not hesitate again as here to conclude that the "case or controversy" requirement of Art. III was satisfied. 405 U.S., at 443, 92 S.Ct., at 1033. In considering Baird's constitutional objections, the Court fully recognized his standing to defend the privacy interests of third parties. Deemed crucial to the decision to permit jus tertii standing was the recognition of "the impact of the litigation on the third-party interests." Id., at 445, 92 S.Ct., at 1034. Just as the defeat of Baird's suit and the "(e)nforcement of the Massachusetts statute will materially impair the ability of single persons to obtain contraceptives," id., at 446, 92 S.Ct., at 1034, so too the failure of Whitener to prevail in this suit and the continued enforcement of §§ 241 and 245 will "materially impair the ability of" males 18-20 years of age to purchase 3.2% beer despite their classification by an overt gender-based criterion. Similarly, just as the Massachusetts law in Eisenstadt "prohibit(ed),*197 not use, but distribution," 405 U.S., at 446, 92 S.Ct., at 1034, and consequently the least awkward challenger was one in Baird's position who was subject to that proscription, the law challenged here explicitly regulates the sale rather than use of 3.2% beer, thus leaving a vendor as the obvious claimant.

We therefore hold that Whitener has standing to raise relevant equal protection challenges to Oklahoma's gender-based law. We now consider those arguments.

II

A.

Before 1972, Oklahoma defined the commencement of civil majority at age 18 for females and age 21 for males. Okla.Stat., Tit. 15, § 13 (1972 and Supp.1976). In contrast, females were held criminally responsible as adults at age 18 and males at age 16. Okla.Stat., Tit. 10, § 1101(a) (Supp.1976). After the Court of Appeals for the Tenth Circuit held in 1972, on the authority of Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed. 225 (1971), that the age distinction was unconstitutional for purposes of establishing criminal responsibility as adults, Lamb v. Brown, 456 F.2d 18, the Oklahoma Legislature fixed age 18 as applicable to both males and females. Okla.Stat., Tit. 10, § 1101(a) (Supp.1976). In 1972, 18 also was established as the age of majority for males and females in civil matters, Okla.Stat., Tit. 15, § 13 (1972 and Supp.1976), except that §§ 241 and 245 of the 3.2% beer statute were simultaneously codified to create an exception to the gender-free rule.

Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are "subject to scrutiny under the Equal Protection Clause." 404 U.S., at 75, 92 S.Ct., at 253. To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Thus, in Reed, the ob*198jectives of "reducing the workload on probate courts," id., at 76, 92 S.Ct., at 254, and "avoiding intrafamily controversy," id., at 77, 92 S.Ct., at 254, were deemed of insufficient importance to sustain use of an overt gender criterion in the appointment of administrators of intestate decedents' estates. Decisions following Reed similarly have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications. See, e. g., Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972); Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 1772, 36 L.Ed.2d 583 (1973); cf. Schlesinger v. Ballard, 419 U.S. 498, 506-507, 95 S.Ct. 572, 576-577, 42 L.Ed.2d 610 (1975). And only two Terms ago, Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975), expressly stating that Reed v. Reed was "controlling," 421 U.S., at 13, 95 S.Ct., at 1377, held that Reed required invalidation of a Utah differential age-of-majority statute, notwithstanding the statute's coincidence with and furtherance of the State's purpose of fostering "old notions" of role typing and preparing boys for their expected performance in the economic and political worlds. 421 U.S., at 14-15, 95 S.Ct., at 1378.6

Reed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, "archaic and overbroad" generalizations, Schlesinger v. Ballard, supra, 419 U.S., at 508, 95 S.Ct., at 577, concerning the financial position of servicewomen, Frontiero v. Richardson, supra, 411 U.S., at 689 n. 23, 93 S.Ct., at 1772, and working women, Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514 (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated*199 misconceptions concerning the role of females in the home rather than in the "marketplace and world of ideas" were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton, supra ; Taylor v. Louisiana, 419 U.S. 522, 535 n. 17, 95 S.Ct. 692, 700, 42 L.Ed.2d 690 (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion, or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact. See, e. g., Stanley v. Illinois, supra, 405 U.S., at 658, 92 S.Ct., at 1216; cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 650, 94 S.Ct. 791, 801, 39 L.Ed.2d 52 (1974).

In this case, too, "Reed, we feel is controlling . . .," Stanton v. Stanton, supra, 421 U.S., at 13, 95 S.Ct., at 1377. We turn then to the question whether, under Reed, the difference between males and females with respect to the purchase of 3.2% beer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not.

B

The District Court recognized that Reed v. Reed was controlling. In applying the teachings of that case, the court found the requisite important governmental objective in the traffic-safety goal proffered by the Oklahoma Attorney General. It then concluded that the statistics introduced by the appellees established that the gender-based distinction was substantially related to achievement of that goal.

C

We accept for purposes of discussion the District Court's identification of the objective underlying §§ 241 and 245 as the enhancement of traffic safety. 7 Clearly, the protection*200 of public health and safety represents an important function of state and local governments. However, appellees' statistics in our view cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot under Reed withstand equal protection challenge.

The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for "driving under the influence" and "drunkenness" substantially exceeded female arrests for that same age period.8 Similarly, youths aged 17-21 were found to be overrepresented among those killed*201 or injured in traffic accidents, with males again numerically exceeding females in this regard.9 Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts. 10Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for "driving under the influence." 11 Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma's experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. Conceding that "the case is not free from doubt," 399 F.Supp., at 1314, the District Court nonetheless concluded that this statistical showing substantiated "a rational basis for the legislative judgment underlying the challenged classification." Id., at 1307.

Even were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer to the equal protection question presented here. The most focused and relevant of the statistical surveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate unpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate driving while under the influence of alcohol the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if male*202ness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous "fit." 12 Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than this.13

Moreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value to equal protection analysis. Setting aside the obvious methodological problems,14 the surveys do not adequately justify the salient*203 features of Oklahoma's gender-based traffic-safety law. None purports to measure the use and dangerousness of 3.2% beer as opposed to alcohol generally, a detail that is of particular importance since, in light of its low alcohol level, Oklahoma apparently considers the 3.2% beverage to be "nonintoxicating." Okla.Stat., Tit. 37, § 163.1 (1958); see State ex rel. Springer v. Bliss, 199 Okl. 198, 185 P.2d 220 (1947). Moreover, many of the studies, while graphically documenting the unfortunate increase in driving while under the influence of alcohol, make no effort to relate their findings to age-sex differentials as involved here.15 Indeed, the only survey that explicitly centered its attention upon young drivers and their use of beer albeit apparently not of the diluted 3.2% variety reached results that hardly can be viewed as impressive in justifying either a gender or age classification.16*204 There is no reason to belabor this line of analysis. It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause.17 Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahoma's statute prohibits only the selling of 3.2% beer to young males and not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed's requirement that the gender-based difference be substantially related to achievement of the statutory objective.

We hold, therefore, that under Reed, Oklahoma's 3.2% beer statute invidiously discriminates against males 18-20 years of age.

D

Appellees argue, however, that §§ 241 and 245 enforce state policies concerning the sale and distribution of alcohol and by force of the Twenty-first Amendment should therefore be held to withstand the equal protection challenge. The District Court's response to this contention is unclear. The court assumed that the Twenty-first Amendment "strengthened" the State's police powers with respect to alcohol regulation, 399 F.Supp. at 1307, but then said that "the standards of review that (the Equal Protection Clause) mandates are not relaxed." Id., at 1308. Our view is, and we hold, that the Twenty-first Amendment does not save the*205 invidious gender-based discrimination from invalidation as a denial of equal protection of the laws in violation of the Fourteenth Amendment.

The history of state regulation of alcoholic beverages dates from long before adoption of the Eighteenth Amendment. In the License Cases, 5 How. 504, 579, 12 L.Ed. 256 (1847), the Court recognized a broad authority in state governments to regulate the trade of alcoholic beverages within their borders free from implied restrictions under the Commerce Clause. Later in the century, however, Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128 (1890), undercut the theoretical underpinnings of License Cases. This led Congress, acting pursuant to its powers under the Commerce Clause, to reinvigorate the State's regulatory role through the passage of the Wilson 18 and Webb-Kenyon Acts.19 See, e. g., Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1917) (upholding Webb-Kenyon Act); In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572 (1891) (upholding Wilson Act). With passage of the Eighteenth Amendment, the uneasy tension between the Commerce Clause and state police power temporarily subsided.

The Twenty-first Amendment repealed the Eighteenth Amendment in 1933. The wording of § 2 of the Twenty-first Amendment 20 closely follows the Webb-Kenyon and Wil*206son Acts, expressing the framers' clear intention of constitutionalizing the Commerce Clause framework established under those statutes. This Court's decisions since have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause. See, e. g., Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350 (1964); Carter v. Virginia, 321 U.S. 131, 139-140, 64 S.Ct. 464, 469-470, 88 L.Ed. 605 (1944) (Frankfurter, J., concurring); Finch & Co. v. McKittrick, 305 U.S. 395, 398, 59 S.Ct. 256, 257, 83 L.Ed. 246 (1939). Even here, however, the Twenty-first Amendment does not pro tanto repeal the Commerce Clause, but merely requires that each provision "be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, 377 U.S., at 332, 84 S.Ct., at 1298; cf. Department of Revenue v. James Beam Distilling Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362 (1964); Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502 (1938).

Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful. As one commentator has remarked: "Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned." P. Brest, Processes of Constitutional Decisionmaking, Cases and Materials 258 (1975). Any departures from this historical view have been limited and sporadic. Two States successfully relied upon the Twenty-first Amendment to respond to challenges of major liquor importers to state authority to regulate the importation and manufacture of alcoholic beverages on Commerce Clause and Fourteenth Amendment grounds. See Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424 (1938); State Board of Equalization of California v. Young's Market Co.,*207 299 U.S. 59, 64, 57 S.Ct. 77, 79, 81 L.Ed. 38 (1936). In fact, however, the arguments in both cases centered upon importation of intoxicants, a regulatory area where the State's authority under the Twenty-first Amendment is transparently clear, Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, 377 U.S., at 330, and n.9, 84 S.Ct., at 1297, and touched upon purely economic matters that traditionally merit only the mildest review under the Fourteenth Amendment, see, e. g., Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 47-48, 50-51, 86 S.Ct. 1254, 1262-1263, 1263-1264, 16 L.Ed.2d 336 (1966) (rejecting Fourteenth Amendment objections to state liquor laws on the strength of Ferguson v. Skrupa, 372 U.S. 726, 729-730, 83 S.Ct. 1028, 1030-1031, 10 L.Ed.2d 93 (1963) and Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955) ).21 Cases involving individual rights protected by the Due Process Clause have been treated in sharp contrast. For example, when an individual objected to the mandatory "posting" of her name in retail liquor establishments and her characterization as an "excessive drink(er)," the Twenty-first Amendment was held not to qualify the scope of her due process rights. Wisconsin v. Constantineau, 400 U.S. 433, 436, 91 S.Ct. 507, 509, 27 L.Ed.2d 515 (1971).

It is true that California v. LaRue, 409 U.S. 109, 115, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972), relied upon the Twenty-first Amendment to "strengthen" the State's authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances "partake more of gross sexuality than of communication," id., at 118, 93 S.Ct., at 397. Nevertheless, the Court has never recognized sufficient "strength" in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause.

*208Rather, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178-179, 92 S.Ct. 1965, 1974, 32 L.Ed.2d 627 (1972), establishes that state liquor regulatory schemes cannot work invidious discriminations that violate the Equal Protection Clause.

Following this approach, both federal and state courts uniformly have declared the unconstitutionality of gender lines that restrain the activities of customers of state-regulated liquor establishments irrespective of the operation of the Twenty-first Amendment. See, e. g., White v. Fleming, 522 F.2d 730 (CA7 1975); Women's Liberation Union of R.I. v. Israel, 512 F.2d 106 (CA1 1975); Daugherty v. Daley, 370 F.Supp. 338 (ND Ill.1974) (three-judge court); Seidenberg v. McSorleys' Old Ale House, Inc., 317 F.Supp. 593 (SDNY 1970); Commonwealth Alcoholic Beverage Control Bd. v. Burke, 481 S.W.2d 52 (Ky.1972); cf. Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971); Paterson Tavern & G. O. A. v. Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970). Even when state officials have posited sociological or empirical justifications for these gender-based differentiations, the courts have struck down discriminations aimed at an entire class under the guise of alcohol regulation. In fact, social science studies that have uncovered quantifiable differences in drinking tendencies dividing along both racial and ethnic lines strongly suggest the need for application of the Equal Protection Clause in preventing discriminatory treatment that almost certainly would be perceived as invidious.22 In sum, the principles embodied in the Equal*209 Protection Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. We thus hold that the operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case.

*210We conclude that the gender-based differential contained in Okla.Stat., Tit. 37, § 245 (1976 Supp.) constitutes a denial of the equal protection of the laws to males aged 18-20 23 and reverse the judgment of the District Court. 24

It is so ordered.

1

1. Sections 241 and 245 provide in pertinent part:

§ 241. "It shall be unlawful for any person who holds a license to sell and dispense beer . . . to sell, barter or give to any minor any beverage containing more than one-half of one per cent of alcohol measured by volume and not more than three and two-tenths (3.2) per cent of alcohol measured by weight.

§ 245. "A 'minor,' for the purposes of Section . . . 241 . . . is defined as a female under the age of eighteen (18) years, and a male under the age of twenty-one (21) years."

2

Appellants did not seek class certification of Craig as representative of other similarly situated males 18-20 years of age. See, e. g., Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 558, 42 L.Ed.2d 532 (1975).

3

The District Court's opinion confirms that Whitener from the outset has based her constitutional challenge on gender-discrimination grounds, 399 F.Supp., at 1306, and "(n)o challenge is made to (her) standing and requisite interest in the controversy . . . ." Id., at 1306 n. 1.

4

The standing question presented here is not answered by the principle stated in United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960), that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." In Raines, the Court refused to permit certain public officials of Georgia to defend against application of the Civil Rights Act to their official conduct on the ground that the statute also might be construed to encompass the "purely private actions" of others. The Raines rule remains germane in such a setting, where the interests of the litigant and the rights of the proposed third parties are in no way mutually interdependent. Thus, a successful suit against Raines did not threaten to impair or diminish the independent private rights of others, and consequently, consideration of those third-party rights properly was deferred until another day.

Of course, the Raines principle has also been relaxed where legal action against the claimant threatens to "chill" the First Amendment rights of third parties. See, e. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974).

5

The fact that Baird chose to disobey the legal duty imposed upon him by the Massachusetts, anticontraception statute, resulting in his criminal conviction, 405 U.S., at 440, 92 S.Ct., at 1031, does not distinguish the standing inquiry from that pertaining to the anticipatory attack in this case. In both Eisenstadt and here, the challenged statutes compel jus tertii claimants either to cease their proscribed activities or to suffer appropriate sanctions. The existence of Art. III "injury in fact" and the structure of the claimant's relationship to the third parties are not altered by the litigative posture of the suit. And, certainly, no suggestion will be heard that Whitener's anticipatory challenge offends the normal requirements governing such actions. See generally Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

6

Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974) and Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), upholding the use of gender-based classifications, rested upon the Court's perception of the laudatory purposes of those laws as remedying disadvantageous conditions suffered by women in economic and military life. See 416 U.S., at 353-354, 94 S.Ct. at 1736-1737; 419 U.S., at 508, 95 S.Ct., at 577. Needless to say, in this case Oklahoma does not suggest that the age-sex differential was enacted to ensure the availability of 3.2% beer for women as compensation for previous deprivations.

7

That this was the true purpose is not at all self-evident. The purpose is not apparent from the face of the statute and the Oklahoma Legislature does not preserve statutory history materials capable of clarifying the objectives served by its legislative enactments. The District Court acknowledged the nonexistence of materials necessary "to reveal what the actual purpose of the legislature was," but concluded that "we feel it apparent that a major purpose of the legislature was to promote the safety of the young persons affected and the public generally." 399 F.Supp., at 1311 n. 6. Similarly, the attorney for Oklahoma, while proposing traffic safety as a legitimate rationale for the 3.2% beer law, candidly acknowledged at oral argument that he is unable to assert that traffic safety is "indeed the reason" for the gender line contained in § 245. Tr. of Oral Arg. 27. For this appeal we find adequate the appellee's representation of legislative purpose, leaving for another day consideration of whether the statement of the State's Assistant Attorney General should suffice to inform this Court of the legislature's objectives, or whether the Court must determine if the litigant simply is selecting a convenient, but false, post hoc rationalization.

8

The disparities in 18-20-year-old male-female arrests were substantial for both categories of offenses: 427 versus 24 for driving under the influence of alcohol, and 966 versus 102 for drunkenness. Even if we assume that a legislature may rely on such arrest data in some situations, these figures do not offer support for a differential age line, for the disproportionate arrests of males persisted at older ages; indeed, in the case of arrests for drunkenness, the figures for all ages indicated "even more male involvement in such arrests at later ages." 399 F.Supp., at 1309. See also n. 14, infra.

9

This survey drew no correlation between the accident figures for any age group and levels of intoxication found in those killed or injured.

10

For an analysis of the results of this exhibit, see n. 16, infra.

11

The FBI made no attempt to relate these arrest figures either to beer drinking or to an 18-21 age differential, but rather found that male arrests for all ages exceeded 90% of the total.

12

Obviously, arrest statistics do not embrace all individuals who drink and drive. But for purposes of analysis, this "underinclusiveness" must be discounted somewhat by the shortcomings inherent in this statistical sample, see n. 14, infra. In any event, we decide this case in light of the evidence offered by Oklahoma and know of no way of extrapolating these arrest statistics to take into account the driving and drinking population at large, including those who avoided arrest.

13

For example, we can conjecture that in Reed, Idaho's apparent premise that women lacked experience in formal business matters (particularly compared to men) would have proved to be accurate in substantially more than 2% of all cases. And in both Frontiero and Wiesenfeld, we expressly found appellees' empirical defense of mandatory dependency tests for men but not women to be unsatisfactory, even though we recognized that husbands are still far less likely to be dependent on their wives than vice versa. See, e. g., 411 U.S., at 688-690, 93 S.Ct., at 1771-1772.

14

The very social stereotypes that find reflection in age-differential laws, see Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct., at 1378 (1975), are likely substantially to distort the accuracy of these comparative statistics. Hence "reckless" young men who drink and drive are transformed into arrest statistics, whereas their female counterparts are chivalrously escorted home. See, e. g., W. Reckless & B. Kay, The Female Offender 4, 7, 13, 16-17 (Report to Presidential Commission on Law Enforcement and Administration of Justice, 1967). Moreover, the Oklahoma surveys, gathered under a regime where the age-differential law in question has been in effect, are lacking in controls necessary for appraisal of the actual effectiveness of the male 3.2% beer prohibition. In this regard, the disproportionately high arrest statistics for young males and, indeed, the growing alcohol-related arrest figures for all ages and sexes simply may be taken to document the relative futility of controlling driving behavior by the 3.2% beer statute and like legislation, although we obviously have no means of estimating how many individuals, if any, actually were prevented from drinking by these laws.

15

15. See, e. g., nn. 9 and 11, supra. See also n. 16, infra.

16

The random roadside survey of drivers conducted in Oklahoma City during August 1972 found that 78% of drivers under 20 were male. Turning to an evaluation of their drinking habits and factoring out nondrinkers, 84% of the males versus 77% of the females expressed a preference for beer. Further 16.5% of the men and 11.4% of the women had consumed some alcoholic beverage within two hours of the interview. Finally, a blood alcohol concentration greater than .01% was discovered in 14.6% of the males compared to 11.5% of the females. "The 1973 figures, although they contain some variations, reflect essentially the same pattern." 399 F.Supp., at 1309. Plainly these statistical disparities between the sexes are not substantial. Moreover, when the 18-20 age boundaries are lifted and all drivers analyzed, the 1972 roadside survey indicates that male drinking rose slightly whereas female exposure to alcohol remained relatively constant. Again, in 1973, the survey established that "compared to all drivers interviewed, . . . the under-20 age group generally showed a lower involvement with alcohol in terms of having drunk within the past two hours or having a significant BAC (blood alcohol content)." Ibid. In sum, this survey provides little support for a gender line among teenagers and actually runs counter to the imposition of drinking restrictions based upon age.

17

See, e. g., n. 22, infra.

18

The Wilson Act, enacted in 1890, reads in pertinent part: "All . . . intoxicating liquors or liquids transported into any State or Territory . . . shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory . . . ." 27 U.S.C. § 121.

19

The Webb-Kenyon Act of 1913 prohibits "(t)he shipment or transportation . . . of any . . . intoxicating liquor of any kind from one State, Territory, or District . . . into any other State, Territory, or District . . . (for the purpose of being) received, possessed, sold, or in any manner used . . . in violation of any law of such State, Territory, or District . . .." 27 U.S.C. § 122.

20

"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

21

The dictum contained in State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 79, 81 L.Ed. 38 (1936), that "(a) classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth," is inapplicable to this case. The Twenty-first Amendment does not recognize, even indirectly, classifications based upon gender. And, as the accompanying text demonstrates, that statement has not been relied upon in recent cases that have considered Fourteenth Amendment challenges to state liquor regulation.

22

Thus, if statistics were to govern the permissibility of state alcohol regulation without regard to the Equal protection Clause as a limiting principle, it might follow that States could freely favor Jews and Italian Catholics at the expense of all other Americans, since available studies regularly demonstrate that the former two groups exhibit the lowest rates of problem drinking. See, e. g., Haberman & Sheinberg, Implicative Drinking Reported in a Household Survey: A Corroborative Note on Subgroup Differences, 28 Q. J. Studies on Alcohol 538 (1967); Wechsler, Thum, Demone, & Dwinnell, Social Characteristics and Blood Alcohol Level, 33 Q. J. Studies on Alcohol 132, 141-142 (1972); Wechsler,

Demone, Thum, & Kasey, Religious-Ethnic Differences In Alcohol Consumption, 11 J. Health & Soc. Behavior 21, 28 (1970); Schmidt & Popham, Impressions of Jewish Alcoholics, 37 J. Studies on Alcohol 931 (1976). Similarly, if a State were allowed simply to depend upon demographic characteristics of adolescents in identifying problem drinkers, statistics might support the conclusion that only black teenagers should be permitted to drink, followed by Asian-Americans and Spanish-Americans. "Whites and American Indians have the lowest proportions of abstainers and the highest proportions of moderate/heavy and heavy drinkers." Summary of Final Report of a National Study of Adolescent Drinking Behavior, Attitudes and Correlates 147-148 (Center for the Study of Social Behavior, Research Triangle Inst., Apr. 1975) (percentage of moderate/heavy and heavy adolescent drinkers by race: black 15.2%; Asian-American 18.3%; Spanish-American 22.7%; white 25.3%; American Indian 28.1%).

In the past, some States have acted upon their notions of the drinking propensities of entire groups in fashioning their alcohol policies. The most typical recipient of this treatment has been the American Indian; indeed, several States established criminal sanctions for the sale of alcohol to an Indian or "half or quarter breed Indian." See, e. g., Fla.Stat.Ann. § 569.07 (1962 and 1976 Supp.) (repealed in 1972); Iowa Code Ann. § 732.5 (1950 and 1976 Supp.) (repealed in 1967); Minn.Stat.Ann. § 340.82 (1957) (repealed in 1969); Neb.Rev.Stat. 53-181 (1944) (repealed in 1955); Utah Code Ann. § 76-34-1 (1953 and 1975 Supp.) (repealed in 1955). Other statutes and constitutional provisions proscribed the introduction of alcoholic beverages onto Indian reservations. See, e. g., Act of June 10, 1910, § 2, 36 Stat. 558; Ariz.Const., Art. XX, § 3; N.M.Const., Art. XXI, § 8; Okla.Const., Art. I, § 7. While Indian-oriented provisions were the most common, state alcohol beverage prohibitions also have been directed at other groups, notably German, Italian, and Catholic immigrants. See, e. g., J. Higham, Strangers in the Land 25, 267-268, 295 (1975). The repeal of most of these laws signals society's perception of the unfairness and questionable constitutionality of singling out groups to bear the brunt of alcohol regulation.

23

Insofar as Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948), may be inconsistent, that decision is disapproved. Undoubtedly reflecting the view that Goesaert's equal protection analysis no longer obtains, the District Court made no reference to that decision in upholding Oklahoma's statute. Similarly, the opinions of the federal and state courts cited earlier in the text invalidating gender lines with respect to alcohol regulation uniformly disparaged the contemporary vitality of Goesaert.

24

As noted in Stanton v. Stanton, 421 U.S., at 17-18, 95 S.Ct., at 1379-1380, the Oklahoma Legislature is free to redefine any cutoff age for the purchase and sale of 3.2% beer that it may choose, provided that the redefinition operates in a gender-neutral fashion.

Mr. Justice POWELL, concurring.

I join the opinion of the Court as I am in general agreement with it. I do have reservations as to some of the discussion concerning the appropriate standard for equal protection analysis and the relevance of the statistical evidence. Accordingly, I add this concurring statement.

With respect to the equal protection standard, I agree that Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), is the most relevant precedent. But I find it unnecessary, in deciding this case, to read that decision as broadly as some of the Court's language may imply. Reed and subsequent cases involving gender-based classifications make clear that the Court subjects such classifications to a more critical examination than is normally applied when "fundamental" constitutional rights and "suspect classes" are not present. **211 I view this as a relatively easy case. No one questions the legitimacy or importance of the asserted governmental objective: the promotion of highway safety. The decision of the case turns on whether the state legislature, by the classification it has chosen, had adopted a means that bears a " 'fair and substantial relation' " to this objective. Id., at 76, 92 S.Ct., at 254, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).

It seems to me that the statistics offered by appellees and relied upon by the District Court do tend generally to support the view that young men drive more, possibly are inclined to drink more, and for various reasons are involved in more accidents than young women. Even so, I am not persuaded that these facts and the inferences fairly drawn from them justify this classification based on a three-year age differential between the sexes, and especially one that it so easily circumvented as to be virtually meaningless. Putting it differently, this gender-based classification does not bear a fair and substantial relation to the object of the legislation.

*

As is evident from our opinions, the Court has had difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid reasons for dissatisfaction with the "two-tier" approach that has been prominent in the Court's decisions in the past decade. Although viewed by many as a result-oriented substitute for more critical analysis, that approach with its narrowly limited "upper-tier" now has substantial precedential support. As has been true of Reed and its progeny, our decision today will be viewed by some as a "middle-tier" approach. While I would not endorse that characterization and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential "rational basis" standard of review normally applied takes on a sharper focus when we address a gender-based classification. So much is clear from our recent cases. For thoughtful discussions of equal protection analysis, see, e. g., Gunther, The Supreme Court, 1971 Term Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for A Newer Equal Protection, 86 Harv.L.Rev. 1 (1972); Wilkinson, The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va.L.Rev. 945 (1975).

Mr. Justice STEVENS, concurring.

There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the*212 courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard.

I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an attempt to articulate it in all-encompassing terms. It may therefore be appropriate for me to state the principal reasons which persuaded me to join the Court's opinion.

In this case, the classification is not as obnoxious as some the Court has condemned,1 nor as inoffensive as some the Court has accepted. It is objectionable because it is based on an accident of birth,2 because it is a mere remnant of the now almost universally rejected tradition of discriminating against males in this age bracket,3 and because, to the extent it reflects any physical difference between males and*213 females, it is actually perverse. 4 The question then is whether the traffic safety justification put forward by the State is sufficient to make an otherwise offensive classification acceptable.

The classification is not totally irrational. For the evidence does indicate that there are more males than females in this age bracket who drive and also more who drink. Nevertheless, there are several reasons why I regard the justification as unacceptable. It is difficult to believe that the statute was actually intended to cope with the problem of traffic safety,5 since it has only a minimal effect on access to a not very intoxicating beverage and does not prohibit its consumption.6 Moreover, the empirical data submitted by*214 the State accentuate the unfairness of treating all 18-21-year-old males as inferior to their female counterparts. The legislation imposes a restraint on 100% of the males in the class allegedly because about 2% of them have probably violated one or more laws relating to the consumption of alcoholic beverages. 7 It is unlikely that this law will have a significant deterrent effect either on that 2% or on the law-abiding 98%. But even assuming some such slight benefit, it does not seem to me that an insult to all of the young men of the State can be justified by visiting the sins of the 2% on the 98%.

1

Men as a general class have not been the victims of the kind of historic, pervasive discrimination that has disadvantaged other groups.

2

"(S)ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . .,' Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768." Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583.

3

Apparently Oklahoma is the only State to permit this narrow discrimination to survive the elimination of the disparity between the age of majority for males and females.

4

Because males are generally heavier than females, they have a greater capacity to consume alcohol without impairing their driving ability than do females.

5

There is no legislative history to indicate that this was the purpose, and several features of the statutory scheme indicate the contrary. The statute exempts license holders who dispense 3.2% beer to their own children, and a related statute makes it unlawful for 18-year-old men (but not women) to work in establishments in which 3.2% beer accounts for over 25% of gross sales. Okla.Stat., Tit. 37, §§ 241, 243, 245 (1953 and Supp.1976).

There is, of course, no way of knowing what actually motivated this discrimination, but I would not be surprised if it represented nothing more than the perpetuation of a stereotyped attitude about the relative maturity of the members of the two sexes in this age bracket. If so, the following comment is relevant:

"(A) traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship other than pure prejudicial discrimination to the stated purpose for which the classification is being made." Mathews v. Lucas, 427 U.S. 495, at 520-521, 96 S.Ct. 2755, at 2769, 49 L.Ed.2d 651 (Stevens, J., dissenting).

6

It forbids the sale of 3.2% beer to 18-21-year-old men without forbidding possession, or preventing them from obtaining it from other sources, such as friends who are either older or female. Thus, the statute only slightly impedes access to 3.2% beer.

7

The only direct evidence submitted by the State concerning use of beer by young drivers indicates that there is no substantial difference between the sexes. In a random roadside survey of drivers, 16.5% of the male drivers under 20 had consumed alcohol within two hours of the interview as opposed to 11.4% of the women. Over three-fourths of the nonabstainers in both groups expressed a preference for beer. And 14.6% of the men, as opposed to 11.5% of the women, had blood alcohol concentrations over .01%. See ante, at 203 n. 16.

Mr. Justice BLACKMUN, concurring in part.

I join the Court's opinion except Part II-D thereof. I agree, however, that the Twenty-first Amendment does not save the challenged Oklahoma statute.

Mr. Justice STEWART, concurring in the judgment.

I agree that the appellant Whitener has standing to assert the equal protection claims of males between 18 and 21 years old. Eisenstadt v. Baird, 405 U.S. 438, 443-446, 92 S.Ct. 1029, 1033-1035, 31 L.Ed.2d 349; Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 1679, 14 L.Ed.2d 510; Barrows v. Jackson, 346 U.S. 249, 255-260, 73 S.Ct. 1031, 1034-1037, 97 L.Ed. 1586; Buchanan v. Warley, 245 U.S. 60, 72-73, 38 S.Ct. 16, 17-18, 62 L.Ed. 149; see Note, Standing To Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 431-436 (1974). I also concur in the Court's judgment on the merits of the constitutional issue before us.

*215Every State has broad power under the Twenty-first Amendment to control the dispensation of alcoholic beverages within its borders. E. g., California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342; Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1296, 12 L.Ed.2d 350; Mahoney v. Joseph Triner Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. 1424; State Board of Equalization v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38. But "(t)his is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor . . . ." California v. LaRue, supra, 409 U.S., at 120, 93 S.Ct., at 398 n. (concurring opinion).

The disparity created by these Oklahoma statutes amounts to total irrationality. For the statistics upon which the State now relies, whatever their other shortcomings, wholly fail to prove or even suggest that 3.2% beer is somehow more deleterious when it comes into the hands of a male aged 18-20 than of a female of like age. The disparate statutory treatment of the sexes here, without even a colorably valid justification or explanation, thus amounts to invidious discrimination. See Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.

Mr. Chief Justice BURGER, dissenting.

I am in general agreement with Mr. Justice REHNQUIST's dissent, but even at the risk of compounding the obvious confusion created by those voting to reverse the District Court, I will add a few words.

At the outset I cannot agree that appellant Whitener has standing arising from her status as a saloonkeeper to assert the constitutional rights of her customers. In this Court "a litigant may only assert his own constitutional rights or immunities." United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524 (1960). There are a few, but strictly limited exceptions to that rule; despite the most creative efforts, this case fits within none of them.

*216This is not Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), or Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), for these is here no barrier whatever to Oklahoma males 18-20 years of age asserting, in an appropriate forum, any constitutional rights they may claim to purchase 3.2% beer. Craig's successful litigation of this very issue was prevented only by the advent of his 21st birthday. There is thus no danger of interminable dilution of those rights if appellant Whitener is not permitted to litigate them here. Cf. Eisenstadt v. Baird, 405 U.S. 438, 445-446, 92 S.Ct. 1029, 1034-1035, 31 L.Ed.2d 349 (1972).

Nor is this controlled by Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). It borders on the ludicrous to draw a parallel between a vendor of beer and the intimate professional physician-patient relationship which undergirded relaxation of standing rules in that case.

Even in Eisenstadt, the Court carefully limited its recognition of third-party standing to cases in which the relationship between the claimant and the relevant third party "was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself." 405 U.S., at 445, 92 S.Ct., at 1034. This is plainly not the case here. See also McGowan v. Maryland, 366 U.S. 420, 429-430, 81 S.Ct. 1101, 1106-1108, 6 L.Ed.2d 393 (1961); Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973).

In sum, permitting a vendor to assert the constitutional rights of vendees whenever those rights are arguably infringed introduces a new concept of constitutional standing to which I cannot subscribe.

On the merits, we have only recently recognized that our duty is not "to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973). Thus, even interests of such importance in our society as public education and housing do not qualify as "fundamental rights" for equal protection purposes because they have no*217 textually independent constitutional status. See id., at 29-39, 93 S.Ct., at 1294-1300 (education); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (housing). Though today's decision does not go so far as to make gender-based classifications "suspect," it makes gender a disfavored classification. Without an independent constitutional basis supporting the right asserted or disfavoring the classification adopted, I can justify no substantive constitutional protection other than the normal McGowan v. Maryland, supra, at 425-426, 81 S.Ct., at 1104-1105, protection afforded by the Equal Protection Clause.

The means employed by the Oklahoma Legislature to achieve the objectives sought may not be agreeable to some judges, but since eight Members of the Court think the means not irrational, I see no basis for striking down the statute as violative of the Constitution simply because we find it unwise, unneeded, or possibly even a bit foolish.

With Mr. Justice REHNQUIST, I would affirm the judgment of the District Court.

Mr. Justice REHNQUIST, dissenting.

The Court's disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications. Second is the Court's enunciation of this standard, without citation to any source, as being that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Ante at 197 (emphasis added). The only redeeming feature of the Court's opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), from their view that sex is a "suspect" classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the "rational basis" equal*218 protection analysis expounded in cases such as McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), and I believe that it is constitutional under that analysis.

I

In Frontiero v. Richardson, supra, the opinion for the plurality sets forth the reasons of four Justices for concluding that sex should be regarded as a suspect classification for purposes of equal protection analysis. These reasons center on our Nation's "long and unfortunate history of sex discrimination," 411 U.S., at 684, 93 S.Ct., at 1769, which has been reflected in a whole range of restrictions on the legal rights of women, not the least of which have concerned the ownership of property and participation in the electoral process. Noting that the pervasive and persistent nature of the discrimination experienced by women is in part the result of their ready identifiability, the plurality rested its invocation of strict scrutiny largely upon the fact that "statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members." Id., at 686-687, 93 S.Ct., at 1770. See Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975).

Subsequent to Frontiero, the Court has declined to hold that sex is a suspect class, Stanton v. Stanton, supra, at 13, 95 S.Ct., at 1377, and no such holding is imported by the Court's resolution of this case. However, the Court's application here of an elevated or "intermediate" level scrutiny, like that invoked in cases dealing with discrimination against females, raises the question of why the statute here should be treated any differently from countless legislative classifications unrelated to sex which have been upheld under a minimum rationality standard. Jefferson v. Hackney, 406 U.S. 535, 546-547, 92 S.Ct. 1724, 1731-1732, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 81-84, 92 S.Ct. 254, 257-259, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 484-485, 90 S.Ct. 1153, 1161-1162, 25 L.Ed.2d 491 (1970);*219 McGowan v. Maryland, supra, 366 U.S., at 425-426, 81 S.Ct., at 1104-1105; Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960); Williamson v. Lee Optical Co., supra, 348 U.S., at 488-489, 75 S.Ct., at 464-465.

Most obviously unavailable to support any kind of special scrutiny in this case, is a history or pattern of past discrimination, such as was relied on by the plurality in Frontiero to support its invocation of strict scrutiny. There is no suggestion in the Court's opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts.

The Court does not discuss the nature of the right involved, and there is no reason to believe that it sees the purchase of 3.2% beer as implicating any important interest, let alone one that is "fundamental" in the constitutional sense of invoking strict scrutiny. Indeed, the Court's accurate observation that the statute affects the selling but not the drinking of 3.2% beer, ante, at 204, further emphasizes the limited effect that it has on even those persons in the age group involved. There is, in sum, nothing about the statutory classification involved here to suggest that it affects an interest, or works against a group, which can claim under the Equal Protection Clause that it is entitled to special judicial protection.

It is true that a number of our opinions contain broadly phrased dicta implying that the same test should be applied to all classifications based on sex, whether affecting females or males. E. g., Frontiero v. Richardson, supra, 411 U.S., at 688, 93 S.Ct., at 1771; Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). However, before today, no decision of this Court has applied an elevated level of scrutiny to invalidate a statutory discrimination harmful to males, except where the statute impaired an important personal interest protected by the Constitution.1 There being no such interest*220 here, and there being no plausible argument that this is a discrimination against females,2 the Court's reliance on our previous sex-discrimination cases is ill-founded. It treats gender classification as a talisman which without regard to the rights involved or the persons affected calls into effect a heavier burden of judicial review.

The Court's conclusion that a law which treats males less favorably than females "must serve important governmental objectives and must be substantially related to achievement of those objectives" apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard. I would think we have had enough difficulty with the two standards of review which our cases have recognized the*221 norm of "rational basis," and the "compelling state interest" required where a "suspect classification" is involved so as to counsel weightily against the insertion of still another "standard" between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is "substantially" related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at "important" objectives or, whether the relationship to those objectives is "substantial" enough.

I would have thought that if this Court were to leave anything to decision by the popularly elected branches of the Government, where no constitutional claim other than that of equal protection is invoked, it would be the decision as to what governmental objectives to be achieved by law are "important," and which are not. As for the second part of the Court's new test, the Judicial Branch is probably in no worse position than the Legislative or Executive Branches to determine if there is any rational relationship between a classification and the purpose which it might be thought to serve. But the introduction of the adverb "substantially" requires courts to make subjective judgments as to operational effects, for which neither their expertise nor their access to data fits them. And even if we manage to avoid both confusion and the mirroring of our own preferences in the development of this new doctrine, the thousands of judges in other courts who must interpret the Equal Protection Clause may not be so fortunate.

II

The applicable rational-basis test is one which

"permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than*222 others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, supra, 366 U.S., at 425-426, 81 S.Ct., at 1105 (citations omitted).

Our decisions indicate that application of the Equal Protection Clause in a context not justifying an elevated level of scrutiny does nor demand "mathematical nicety" or the elimination of all inequality. Those cases recognize that the practical problems of government may require rough accommodations of interests, and hold that such accommodations should be respected unless no reasonable basis can be found to support them. Dandridge v. Williams, 397 U.S., at 485, 90 S.Ct., at 1161. Whether the same ends might have been better or more precisely served by a different approach is no part of the judicial inquiry under the traditional minimum rationality approach. Richardson v. Belcher, 404 U.S., at 84, 92 S.Ct., at 258.

The Court "accept(s) for purposes of discussion" the District Court's finding that the purpose of the provisions in question was traffic safety, and proceeds to examine the statistical evidence in the record in order to decide if "the gender-based distinction closely serves to achieve that objective." Ante, at 199, 200 (emphasis added). (Whether there is a difference between laws which "closely serv(e)" objectives and those which are only "substantially related" to their achievement, ante, at 197, we are not told.) I believe that a more traditional type of scrutiny is appropriate in this case, and I think that the Court would have done well here to heed its own warning that "(i)t is unrealistic to expect . . . members of the judiciary . . . to be well versed in the rigors of experimental or statistical technique." Ante, at 204. One*223 need not immerse oneself in the fine points of statistical analysis, however, in order to see the weaknesses in the Court's attempted denigration of the evidence at hand.

One survey of arrest statistics assembled in 1973 indicated that males in the 18-20 age group were arrested for "driving under the influence" almost 18 times as often as their female counterparts, and for "drunkenness" in a ratio of almost 10 to 1.3 Accepting, as the Court does, appellants' comparison of the total figures with 1973 Oklahoma census data, this survey indicates a 2% arrest rate among males in the age group, as compared to a .18% rate among females.

Other surveys indicated (1) that over the five-year period from 1967 to 1972, nationwide arrests among those under 18 for drunken driving increased 138%, and that 93% of all persons arrested for drunken driving were male; 4 (2) that youths in the 17-21 age group were overrepresented among those killed or injured in Oklahoma traffic accidents, that male casualties substantially exceeded female, and that deaths in this age group continued to rise while overall traffic deaths declined; 5 (3) that over three-fourths of the drivers under 20 in the Oklahoma City area are males, and that each of them, on average, drives half again as many miles per year as their female counterparts; 6 (4) that four-fifths of male drivers*224 under 20 in the Oklahoma City area state a drink preference for beer, while about three-fifths of female drivers of that age state the same preference; 7 and (5) that the percentage of male drivers under 20 admitting to drinking within two hours of driving was half again larger than the percentage for females, and that the percentage of male drivers of that age group with a blood alcohol content greater than .01% was almost half again larger than for female drivers.8

The Court's criticism of the statistics relied on by the District Court conveys the impression that a legislature in enacting a new law is to be subjected to the judicial equivalent of a doctoral examination in statistics. Legislatures are not held to any rules of evidence such as those which may govern courts or other administrative bodies, and are entitled to draw factual conclusions on the basis of the determination of probable cause which an arrest by a police officer normally represents. In this situation, they could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of arrest.

And while, as the Court observes, relying on a report to a Presidential Commission which it cites in a footnote, such statistics may be distorted as a result of stereotyping, the legislature is not required to prove before a court that its statistics are perfect. In any event, if stereotypes are as pervasive as the Court suggests, they may in turn influence the conduct of the men and women in question, and cause the young men to conform to the wild and reckless image which is their stereotype.

The Court also complains of insufficient integration of the various surveys on several counts that the injury and death figures are in no way directly correlated with intoxication, ante, at 201 n. 9; that the national arrest figures for drunk driving contain no breakdown for the 18 to 21-year-old group,*225 ante, at 459, n. 11; and that the arrest records for intoxication are not tied to the consumption of 3.2% beer, ante, at 201-202, nn. 11 and 12. But the State of Oklahoma and certainly this Court for purposes of equal protection review can surely take notice of the fact that drunkenness is a significant cause of traffic casualties, and that youthful offenders have participated in the increase of the drunk-driving problem. On this latter point, the survey data indicating increased driving casualties among 18-21-year-olds, while overall casualties dropped, are not irrelevant.

Nor is it unreasonable to conclude from the expressed preference for beer by four-fifths of the age-group males that that beverage was a predominant source of their intoxication-related arrests. Taking that as the predicate, the State could reasonably bar those males from any purchases of alcoholic beer, including that of the 3.2% variety. This Court lacks the expertise or the data to evaluate the intoxicating properties of that beverage, and in that posture our only appropriate course is to defer to the reasonable inference supporting the statute that taken in sufficient quantity this beer has the same effect as any alcoholic beverage.

Quite apart from these alleged methodological deficiencies in the statistical evidence, the Court appears to hold that that evidence, on its face, fails to support the distinction drawn in the statute. The Court notes that only 2% of males (as against .18% of females) in the age group were arrested for drunk driving, and that this very low figure establishes "an unduly tenuous 'fit' " between maleness and drunk driving in the 18 to 20-year-old group. On this point the Court misconceives the nature of the equal protection inquiry.

The rationality of a statutory classification for equal protection purposes does not depend upon the statistical "fit" between the class and the trait sought to be singled out. It turns on whether there may be a sufficiently higher in*226cidence of the trait within the included class than in the excluded class to justify different treatment. Therefore the present equal protection challenge to this gender-based discrimination poses only the question whether the incidence of drunk driving among young men is sufficiently greater than among young women to justify differential treatment. Notwithstanding the Court's critique of the statistical evidence, that evidence suggests clear differences between the drinking and driving habits of young men and women. Those differences are grounds enough for the State reasonably to conclude that young males pose by far the greater drunk-driving hazard, both in terms of sheer numbers and in terms of hazard on a per-driver basis. The gender-based difference in treatment in this case is therefore not irrational.

The Court's argument that a 2% correlation between maleness and drunk driving is constitutionally insufficient therefore does not pose an equal protection issue concerning discrimination between males and females. The clearest demonstration of this is the fact that the precise argument made by the Court would be equally applicable to a flat bar on such purchases by anyone, male or female, in the 18-20 age group; in fact it would apply a fortiori in that case given the even more "tenuous 'fit' " between drunk-driving arrests and femaleness. The statistics indicate that about 1% of the age group population as a whole is arrested. What the Court's argument is relevant to is not equal protection, but due process whether there are enough persons in the category who drive while drunk to justify a bar against purchases by all members of the group.

Cast in those terms, the argument carries little weight, in light of our decisions indicating that such questions call for a balance of the State's interest against the harm resulting from any overinclusiveness or underinclusiveness. Vlandis v. Kline, 412 U.S. 441, 448-452, 93 S.Ct. 2230, 2234-2236, 37 L.Ed.2d 63 (1973). The personal interest harmed*227 here is very minor the present legislation implicates only the right to purchase 3.2% beer, certainly a far cry from the important personal interests which have on occasion supported this Court's invalidation of statutes on similar reasoning. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). And the state interest involved is significant the prevention of injury and death on the highways.

This is not a case where the classification can only be justified on grounds of administrative convenience. Vlandis v. Kline, supra, 412 U.S., at 451, 93 S.Ct., at 2236; Stanley v. Illinois, supra, 405 U.S., at 656, 92 S.Ct., at 1215. There being no apparent way to single out persons likely to drink and drive, it seems plain that the legislature was faced here with the not atypical legislative problem of legislating in terms of broad categories with regard to the purchase and consumption of alcohol. I trust, especially in light of the Twenty-first Amendment, that there would be no due process violation if no one in this age group were allowed to purchase 3.2% beer. Since males drink and drive at a higher rate than the age group as a whole, I fail to see how a statutory bar with regard only to them can create any due process problem.

The Oklahoma Legislature could have believed that 18-20-year-old males drive substantially more, and tend more often to be intoxicated than their female counterparts; that they prefer beer and admit to drinking and driving at a higher rate than females; and that they suffer traffic injuries out of proportion to the part they make up of the population. Under the appropriate rational-basis test for equal protection, it is neither irrational nor arbitrary to bar them from making purchases of 3.2% beer, which purchases might in many cases be made by a young man who immediately returns to his vehicle with the beverage in his possession. The record does not give any good indication of the true proportion of males in the age group who drink and drive (ex*228cept that it is no doubt greater than the 2% who are arrested), but whatever it may be I cannot see that the mere purchase right involved could conceivably raise a due process question. There being no violation of either equal protection or due process, the statute should accordingly be upheld.

1

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the Court struck down a statute allowing separation of illegitimate children from a surviving father but not a surviving mother, without any showing of parental unfitness. The Court stated that "the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' "

In Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), the Court upheld Florida's $500 property tax exemption for widows only. The opinion of the Court appears to apply a rational-basis test, id., at 355, 94 S.Ct., at 1737, and is so understood by the dissenters. Id., at 357, 94 S.Ct., at 1738 (BRENNAN, J., joined by MARSHALL, J., dissenting).

In Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), the Court invalidated § 202(g) of the Social Security Act, which allowed benefits to mothers but not fathers of minor children, who survive the wage earner. This statute was treated, in the opinion of the Court, as a discrimination against females wage earners, on the ground that it minimizes the financial security which their work efforts provide for their families. 420 U.S., at 645, 95 S.Ct., at 1231.

2

I am not unaware of the argument from time to time advanced, that all discriminations between the sexes ultimately redound to the detriment of females, because they tend to reinforce "old notions" restricting the roles and opportunities of women. As a general proposition applying equally to all sex categorizations, I believe that this argument was implicitly found to carry little weight in our decisions upholding gender-based differences. See Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); Kahn v. Shevin, supra, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). Seeing no assertion that it has special applicability to the situation at hand, I believe it can be dismissed as an insubstantial consideration.

3

Extract from: Oklahoma Bureau of Investigation, Arrest Statistics for September, October, November, and December 1973. Defendants' Exhibit 1, Jurisdictional Statement A22. Extract from: Oklahoma City Police Department, Arrest Statistics for 1973. Defendants' Exhibit 2, Jurisdictional Statement A23. See ante, at 200 n. 8.

Extract from: Federal Bureau of Investigation, Crime in the United States, 1972. Defendants' Exhibit 6, App. 182-184.

5

Extract from: Oklahoma Department of Public Safety, Summary of Statewide Collisions for 1972, 1973. Defendants' Exhibits 4 and 5, Jurisdictional Statement A30-A31.

6

Extract from: Oklahoma Management and Engineering Consulting, Inc., Report to Alcohol Safety Action Program (1973). Defendants' Exhibit 3, Table 1, Jurisdictional Statement A25.

7

Id., at A27 (Table 3), A29 (Table 5).

8

Id., at A25 (Table 1). See ante, at 203 n. 16.

United States v. Virginia et al.

Argued January 17, 1996.

Decided June 26, 1996.1

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

*517 *517 *518 Ginsburg, J.,delivered the opinion of the Court, in which Stevens, O'Connor, Kennedy, Souter, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, post, p. 558. Scalia, J., filed a dissenting opinion, post, p. 566. Thomas, J., took no part in the consideration or decision of the case.

Paul Bender argued the cause for the United States in both cases. With him on the briefs were Solicitor General Days, Assistant Attorney General Patrick, Cornelia T. L. Pillard, Jessica Dunsay Silver, and Thomas E. Chandler.

Theodore B. Olson argued the cause and filed briefs for respondents in No. 94-1941 and petitioners in No. 94-2107. With him on the briefs were James S. Gilmore III, Attorney General of Virginia, William H. Hurd, Deputy Attorney General, Thomas G. Hungar, D. Jarrett Arp, Robert H. Patterson, Jr., Anne Marie Whittemore, William G. Broaddus, J. William Boland, Griffin B. Bell, and William A. Clineburg, Jr.2

1

Together with No. 94-2107, Virginia et al. v. United States, also on certiorari to the same court.

2

Briefs of amici curiae urging reversal in No. 94-1941 were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Margery S. Bronster of Hawaii, Scott Harshbarger of Massachusetts, Frankie Sue Del Papa of Nevada, C. Sebastian Aloot of the Northern Mariana Islands, and Theodore R. Kulongoski of Oregon; for the Employment Law Center et al. by Patricia A. Shiu and Judith Kurtz; and for the National Women's Law Center et al. by Robert N. Weiner, Marcia D. Greenberger, Sara L. Mandelbaum, Janet Gallagher, Mary Wyckoff, Steven R. Shapiro, and Susan Deller Ross.

Briefs of amici curiae urging affirmance in No. 94-1941 were filed for the State of South Carolina et al. by Charles Molony Condon, Attorney General, Treva Ashworth, Deputy Attorney General, Kenneth P. Woodington, Senior Assistant Attorney General, Reginald I. Lloyd, Assistant Attorney General, and M. Dawes Cooke, Jr.; and for Kenneth E. Clark et al. by James C. Roberts and George A. Somerville.

Briefs of amici curiae were filed in both cases for the State of Wyoming et al. by William U. Hill, Attorney General of Wyoming, Thomas W. Corbett, Jr., Attorney General of Pennsylvania, and Bradley B. Cavedo; for Bennett College et al. by Wendy S. White; for the Center for Military Readiness et al. by Mellissa Wells-Petry and Jordan W. Lorence; for the Employment Law Center et al. by Patricia A. Shiu and Judith Kurtz; for the Independent Women's Forum et al. by Anita K. Blair and C. Douglas Welty; for Mary Baldwin College by Craig T. Merritt and Richard K. Willard; for the South Carolina Institute of Leadership for Women by Julianne Farnsworth; for Wells College et al. by David M. Lascell; for Women's Schools Together, Inc., et al. by John C. Danforth and Thomas C. Walsh; and for Nancy Mellette by Valorie K. Vojdik, Henry Weisburg, Suzanne E. Coe, and Robert R. Black.

Briefs of amici curiae were filed in No. 94-1941 for the American Association of University Professors et al. by Joan E. Bertin and Ann H. Franke; and for Rhonda Cornum et al. by Allan L. Gropper.

Daniel F. Kolb, Herbert J. Hansell, Paul C. Saunders, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, and Richard T. Seymour filed a brief for the Lawyers' Committee for Civil Rights Under Law as amicus curiae in No. 94-2107.

*519 Justice Ginsburg, delivered the opinion of the Court.

Virginia's public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution's equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.

*520 I

Founded in 1839, VMI is today the sole single-sex school among Virginia's 15 public institutions of higher learning. VMI's distinctive mission is to produce "citizen-soldiers," men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an "adversative method" modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school's graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course.

VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school's alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI's endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all public undergraduate institutions in the Nation.

Neither the goal of producing citizen-soldiers nor VMI's implementing methodology is inherently unsuitable to women. And the school's impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.

II

A

From its establishment in 1839 as one of the Nation's first state military colleges, see 1839 Va. Acts, ch. 20, VMI has remained financially supported by Virginia and "subject to *521 the control of the [Virginia] General Assembly," Va. Code Ann. § 23-92 (1993). First southern college to teach engineering and industrial chemistry, see H. Wise, Drawing Out the Man: The VMI Story 13 (1978) (The VMI Story), VMI once provided teachers for the Commonwealth's schools, see 1842 Va. Acts, ch. 24, § 2 (requiring every cadet to teach in one of the Commonwealth's schools for a 2-year period).1 Civil War strife threatened the school's vitality, but a resourceful superintendent regained legislative support by highlighting "VMI's great potential[,] through its technical know-how," to advance Virginia's postwar recovery. The VMI Story 47.

VMI today enrolls about 1,300 men as cadets.2 Its academic offerings in the liberal arts, sciences, and engineering are also available at other public colleges and universities in Virginia. But VMI's mission is special. It is the mission of the school

"`to produce educated and honorable men, prepared for the varied work of civil life, imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready as citizen-soldiers to defend their country in *522 time of national peril.' " 766 F. Supp. 1407, 1425 (WD Va. 1991) (quoting Mission Study Committee of the VMI Board of Visitors, Report, May 16, 1986).

In contrast to the federal service academies, institutions maintained "to prepare cadets for career service in the armed forces," VMI's program "is directed at preparation for both military and civilian life"; "[o]nly about 15% of VMI cadets enter career military service." 766 F. Supp., at 1432.

VMI produces its "citizen-soldiers" through "an adversative, or doubting, model of education" which features "[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values." Id., at 1421. As one Commandant of Cadets described it, the adversative method "`dissects the young student,' " and makes him aware of his "`limits and capabilities,' " so that he knows "`how far he can go with his anger, . . . how much he can take under stress, . . . exactly what he can do when he is physically exhausted.' " Id. , at 1421-1422 (quoting Col. N. Bissell).

VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Id. , at 1424, 1432. Entering students are incessantly exposed to the rat line, "an extreme form of the adversative model," comparable in intensity to Marine Corps boot camp. Id. , at 1422. Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors. Ibid.

VMI's "adversative model" is further characterized by a hierarchical "class system" of privileges and responsibilities, a "dyke system" for assigning a senior class mentor to each entering class "rat," and a stringently enforced "honor code," which prescribes that a cadet "`does not lie, cheat, steal nor tolerate those who do.' " Id. , at 1422-1423.

*523 VMI attracts some applicants because of its reputation as an extraordinarily challenging military school, and "because its alumni are exceptionally close to the school." Id. , at 1421. "[W]omen have no opportunity anywhere to gain the benefits of [the system of education at VMI]." Ibid.

B

In 1990, prompted by a complaint filed with the Attorney General by a female high-school student seeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI's exclusively male admission policy violated the Equal Protection Clause of the Fourteenth Amendment. Id. , at 1408.3 Trial of the action consumed six days and involved an array of expert witnesses on each side. Ibid.

In the two years preceding the lawsuit, the District Court noted, VMI had received inquiries from 347 women, but had responded to none of them. Id. , at 1436. "[S]ome women, at least," the court said, "would want to attend the school if they had the opportunity." Id. , at 1414. The court further recognized that, with recruitment, VMI could "achieve at least 10% female enrollment"—"a sufficient `critical mass' to provide the female cadets with a positive educational experience." Id. , at 1437-1438. And it was also established that "some women are capable of all of the individual activities required of VMI cadets." Id. , at 1412. In addition, experts agreed that if VMI admitted women, "the VMI ROTC experience would become a better training program from the perspective of the armed forces, because it would provide training in dealing with a mixed-gender army." Id. , at 1441.

The District Court ruled in favor of VMI, however, and rejected the equal protection challenge pressed by the United States. That court correctly recognized that Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982), was *524 the closest guide. 766 F. Supp., at 1410. There, this Court underscored that a party seeking to uphold government action based on sex must establish an "exceedingly persuasive justification" for the classification. Mississippi Univ. for Women, 458 U. S., at 724 (internal quotation marks omitted). To succeed, the defender of the challenged action must show "at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Ibid. (internal quotation marks omitted).

The District Court reasoned that education in "a single-gender environment, be it male or female," yields substantial benefits. 766 F. Supp., at 1415. VMI's school for men brought diversity to an otherwise coeducational Virginia system, and that diversity was "enhanced by VMI's unique method of instruction." Ibid. If single-gender education for males ranks as an important governmental objective, it becomes obvious, the District Court concluded, that the only means of achieving the objective "is to exclude women from the all-male institution—VMI." Ibid.

"Women are [indeed] denied a unique educational opportunity that is available only at VMI," the District Court acknowledged. Id. , at 1432. But "[VMI's] single-sex status would be lost, and some aspects of the [school's] distinctive method would be altered," if women were admitted, id. , at 1413: "Allowance for personal privacy would have to be made," id. , at 1412; "[p]hysical education requirements would have to be altered, at least for the women," id. , at 1413; the adversative environment could not survive unmodified, id. , at 1412-1413. Thus, "sufficient constitutional justification" had been shown, the District Court held, "for continuing [VMI's] single-sex policy." Id. , at 1413.

The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court's judgment. The appellate court held: "The Commonwealth of Virginia has not . . . advanced any state policy by which it can justify its determination, *525 under an announced policy of diversity, to afford VMI's unique type of program to men and not to women." 976 F. 2d 890, 892 (1992).

The appeals court greeted with skepticism Virginia's assertion that it offers single-sex education at VMI as a facet of the Commonwealth's overarching and undisputed policy to advance "autonomy and diversity." The court underscored Virginia's nondiscrimination commitment: "`[I]t is extremely important that [colleges and universities] deal with faculty, staff, and students without regard to sex, race, or ethnic origin. ` " Id. , at 899 (quoting 1990 Report of the Virginia Commission on the University of the 21st Century). "That statement," the Court of Appeals said, "is the only explicit one that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions." 976 F. 2d, at 899. Furthermore, the appeals court observed, in urging "diversity" to justify an all-male VMI, the Commonwealth had supplied "no explanation for the movement away from [single-sex education] in Virginia by public colleges and universities." Ibid. In short, the court concluded, "[a] policy of diversity which aims to provide an array of educational opportunities, including single-gender institutions, must do more than favor one gender." Ibid.

The parties agreed that "some women can meet the physical standards now imposed on men," id. , at 896, and the court was satisfied that "neither the goal of producing citizen soldiers nor VMI's implementing methodology is inherently unsuitable to women," id. , at 899. The Court of Appeals, however, accepted the District Court's finding that "at least these three aspects of VMI's program—physical training, the absence of privacy, and the adversative approach—would be materially affected by coeducation." Id. , at 896-897. Remanding the case, the appeals court assigned to Virginia, in the first instance, responsibility for selecting a remedial course. The court suggested these options for the Commonwealth: Admit women to VMI; establish parallel institutions *526 or programs; or abandon state support, leaving VMI free to pursue its policies as a private institution. Id. , at 900. In May 1993, this Court denied certiorari. See 508 U. S. 946; see also ibid. (opinion of Scalia, J., noting the interlocutory posture of the litigation).

C

In response to the Fourth Circuit's ruling, Virginia proposed a parallel program for women: Virginia Women's Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI's mission—to produce "citizen-soldiers"—the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources. See 852 F. Supp. 471, 476-477 (WD Va. 1994).

The average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the score for VMI freshmen. See id., at 501. Mary Baldwin's faculty holds "significantly fewer Ph. D.'s than the faculty at VMI," id. , at 502, and receives significantly lower salaries, see Tr. 158 (testimony of James Lott, Dean of Mary Baldwin College), reprinted in 2 App. in Nos. 94-1667 and 94-1717 (CA4) (hereinafter Tr.). While VMI offers degrees in liberal arts, the sciences, and engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees. See 852 F. Supp., at 503. A VWIL student seeking to earn an engineering degree could gain one, without public support, by attending Washington University in St. Louis, Missouri, for two years, paying the required private tuition. See ibid.

Experts in educating women at the college level composed the Task Force charged with designing the VWIL program; Task Force members were drawn from Mary Baldwin's own faculty and staff. Id. , at 476. Training its attention on methods of instruction appropriate for "most women," the *527 Task Force determined that a military model would be "wholly inappropriate" for VWIL. Ibid.; see 44 F. 3d 1229, 1233 (CA4 1995).

VWIL students would participate in ROTC programs and a newly established, "largely ceremonial" Virginia Corps of Cadets, id. , at 1234, but the VWIL House would not have a military format, 852 F. Supp., at 477, and VWIL would not require its students to eat meals together or to wear uniforms during the schoolday, id., at 495. In lieu of VMI's adversative method, the VWIL Task Force favored "a cooperative method which reinforces self-esteem." Id., at 476. In addition to the standard bachelor of arts program offered at Mary Baldwin, VWIL students would take courses in leadership, complete an off-campus leadership externship, participate in community service projects, and assist in arranging a speaker series. See 44 F. 3d, at 1234.

Virginia represented that it will provide equal financial support for in-state VWIL students and VMI cadets, 852 F. Supp., at 483, and the VMI Foundation agreed to supply a $5.4625 million endowment for the VWIL program, id., at 499. Mary Baldwin's own endowment is about $19 million; VMI's is $131 million. Id., at 503. Mary Baldwin will add $35 million to its endowment based on future commitments; VMI will add $220 million. Ibid. The VMI Alumni Association has developed a network of employers interested in hiring VMI graduates. The Association has agreed to open its network to VWIL graduates, id., at 499, but those graduates will not have the advantage afforded by a VMI degree.

D

Virginia returned to the District Court seeking approval of its proposed remedial plan, and the court decided the plan met the requirements of the Equal Protection Clause. Id. , at 473. The District Court again acknowledged evidentiary support for these determinations: "[T]he VMI methodology could be used to educate women and, in fact, some *528 women . . . may prefer the VMI methodology to the VWIL methodology." Id. , at 481. But the "controlling legal principles," the District Court decided, "do not require the Commonwealth to provide a mirror image VMI for women." Ibid. The court anticipated that the two schools would "achieve substantially similar outcomes." Ibid. It concluded: "If VMI marches to the beat of a drum, then Mary Baldwin marches to the melody of a fife and when the march is over, both will have arrived at the same destination." Id. , at 484.

A divided Court of Appeals affirmed the District Court's judgment. 44 F. 3d 1229 (CA4 1995). This time, the appellate court determined to give "greater scrutiny to the selection of means than to the [Commonwealth's] proffered objective." Id. , at 1236. The official objective or purpose, the court said, should be reviewed deferentially. Ibid. Respect for the "legislative will," the court reasoned, meant that the judiciary should take a "cautious approach," inquiring into the "legitima[cy]" of the governmental objective and refusing approval for any purpose revealed to be "pernicious." Ibid.

"[P]roviding the option of a single-gender college education may be considered a legitimate and important aspect of a public system of higher education," the appeals court observed, id., at 1238; that objective, the court added, is "not pernicious," id., at 1239. Moreover, the court continued, the adversative method vital to a VMI education "has never been tolerated in a sexually heterogeneous environment." Ibid. The method itself "was not designed to exclude women," the court noted, but women could not be accommodated in the VMI program, the court believed, for female participation in VMI's adversative training "would destroy. . . any sense of decency that still permeates the relationship between the sexes." Ibid.

Having determined, deferentially, the legitimacy of Virginia's purpose, the court considered the question of means. *529 Exclusion of "men at Mary Baldwin College and women at VMI," the court said, was essential to Virginia's purpose, for without such exclusion, the Commonwealth could not "accomplish [its] objective of providing single-gender education." Ibid.

The court recognized that, as it analyzed the case, means merged into end, and the merger risked "bypass[ing] any equal protection scrutiny." Id., at 1237. The court therefore added another inquiry, a decisive test it called "substantive comparability." Ibid. The key question, the court said, was whether men at VMI and women at VWIL would obtain "substantively comparable benefits at their institution or through other means offered by the [S]tate." Ibid. Although the appeals court recognized that the VWIL degree "lacks the historical benefit and prestige" of a VMI degree, it nevertheless found the educational opportunities at the two schools "sufficiently comparable." Id., at 1241.

Senior Circuit Judge Phillips dissented. The court, in his judgment, had not held Virginia to the burden of showing an "`exceedingly persuasive [justification]' " for the Commonwealth's action. Id., at 1247 (quoting Mississippi Univ. for Women, 458 U. S., at 724). In Judge Phillips' view, the court had accepted "rationalizations compelled by the exigencies of this litigation," and had not confronted the Commonwealth's "actual overriding purpose." 44 F. 3d, at 1247. That purpose, Judge Phillips said, was clear from the historical record; it was "not to create a new type of educational opportunity for women, . . . nor to further diversify the Commonwealth's higher education system[,] . . . but [was] simply . . . to allow VMI to continue to exclude women in order to preserve its historic character and mission." Ibid.

Judge Phillips suggested that the Commonwealth would satisfy the Constitution's equal protection requirement if it "simultaneously opened single-gender undergraduate institutions having substantially comparable curricular and extra-curricular programs, funding, physical plant, administration *530 and support services, and faculty and library resources." Id., at 1250. But he thought it evident that the proposed VWIL program, in comparison to VMI, fell "far short . . . from providing substantially equal tangible and intangible educational benefits to men and women." Ibid.

The Fourth Circuit denied rehearing en banc. 52 F. 3d 90 (1995). Circuit Judge Motz, joined by Circuit Judges Hall, Murnaghan, and Michael, filed a dissenting opinion.4 Judge Motz agreed with Judge Phillips that Virginia had not shown an "`exceedingly persuasive justification' " for the disparate opportunities the Commonwealth supported. Id., at 92 (quoting Mississippi Univ. for Women, 458 U. S., at 724). She asked: "[H]ow can a degree from a yet to be implemented supplemental program at Mary Baldwin be held `substantively comparable' to a degree from a venerable Virginia military institution that was established more than 150 years ago?" 52 F. 3d, at 93. "Women need not be guaranteed equal `results,' " Judge Motz said, "but the Equal Protection Clause does require equal opportunity . . . [and] that opportunity is being denied here." Ibid.

III

The cross-petitions in this suit present two ultimate issues. First, does Virginia's exclusion of women from the educational opportunities provided by VMI—extraordinary opportunities for military training and civilian leadership development—deny to women "capable of all of the individual activities required of VMI cadets," 766 F. Supp., at 1412, the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI's "unique" situation, id. , at 1413—as Virginia's sole single-sex public institution of *531 higher education—offends the Constitution's equal protection principle, what is the remedial requirement?

IV

We note, once again, the core instruction of this Court's pathmarking decisions in J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136-137, and n. 6 (1994), and Mississippi Univ. for Women, 458 U. S., at 724 (internal quotation marks omitted): Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.

Today's skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, "our Nation has had a long and unfortunate history of sex discrimination." Frontiero v. Richardson, 411 U. S. 677, 684 (1973). Through a century plus three decades and more of that history, women did not count among voters composing "We the People";5 not until 1920 did women gain a constitutional right to the franchise. Id., at 685. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any "basis in reason" could be conceived for the discrimination. See, e. g., Goesaert v. Cleary, 335 U. S. 464, 467 (1948) (rejecting challenge of female tavern owner and her daughter to Michigan law denying bartender licenses to females—except for wives and daughters of male tavern owners; Court would not "give ear" to the contention that "an unchivalrous desire of male *532 bartenders to . . . monopolize the calling" prompted the legislation).

In 1971, for the first time in our Nation's history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed, 404 U. S. 71, 73 (holding unconstitutional Idaho Code prescription that, among "`several persons claiming and equally entitled to administer [a decedent's estate], males must be preferred to females' "). Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. See, e. g., Kirchberg v. Feenstra, 450 U. S. 455, 462-463 (1981) (affirming invalidity of Louisiana law that made husband "head and master" of property jointly owned with his wife, giving him unilateral right to dispose of such property without his wife's consent); Stanton v. Stanton, 421 U. S. 7 (1975) (invalidating Utah requirement that parents support boys until age 21, girls only until age 18).

Without equating gender classifications, for all purposes, to classifications based on race or national origin,6 the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B. , 511 U. S., at 152 (Kennedy, J., concurring in judgment) (case law evolving since 1971 "reveal[s] a strong presumption that gender classifications are invalid"). To summarize the Court's current directions for cases of official classification based on gender: Focusing on the differential *533 treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women, 458 U. S., at 724. The State must show "at least that the [challenged] classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.' " Ibid. (quoting Wengler v. Druggists Mut. Ins. Co. , 446 U. S. 142, 150 (1980)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U. S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U. S. 199, 223-224 (1977) (Stevens, J., concurring in judgment).

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia, 388 U. S. 1 (1967). Physical differences between men and women, however, are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." Ballard v. United States, 329 U. S. 187, 193 (1946).

"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," Califano v. Webster, 430 U. S. 313, 320 (1977) (per curiam), to "promot[e] equal employment opportunity," see California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272, 289 (1987), to advance full development of the talent and capacities of our Nation's people.7 *534 But such classifications may not be used, as they once were, see Goesaert, 335 U. S., at 467, to create or perpetuate the legal, social, and economic inferiority of women.

Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no "exceedingly persuasive justification" for excluding all women from the citizen-soldier training afforded by VMI. We therefore affirm the Fourth Circuit's initial judgment, which held that Virginia had violated the Fourteenth Amendment's Equal Protection Clause. Because the remedy proffered by Virginia—the Mary Baldwin VWIL program—does not cure the constitutional violation, i. e. , it does not provide equal opportunity, we reverse the Fourth Circuit's final judgment in this case.

V

The Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify, under equal protection principles, its determination "to afford VMI's unique type of program to men and not to women." 976 F. 2d, at 892. Virginia challenges that "liability" ruling and asserts two justifications in defense of VMI's exclusion of *535 women. First, the Commonwealth contends, "single-sex education provides important educational benefits," Brief for Cross-Petitioners 20, and the option of single-sex education contributes to "diversity in educational approaches," id. , at 25. Second, the Commonwealth argues, "the unique VMI method of character development and leadership training," the school's adversative approach, would have to be modified were VMI to admit women. Id. , at 33-36 (internal quotation marks omitted). We consider these two justifications in turn.

A

Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation.8 Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the Commonwealth. In cases of this genre, our precedent instructs that "benign" justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions *536 in fact differently grounded. See Wiesenfeld, 420 U. S., at 648, and n. 16 ("mere recitation of a benign [or] compensatory purpose" does not block "inquiry into the actual purposes" of government-maintained gender-based classifications); Goldfarb, 430 U. S., at 212-213 (rejecting government-proffered purposes after "inquiry into the actual purposes" (internal quotation marks omitted)).

Mississippi Univ. for Women is immediately in point. There the State asserted, in justification of its exclusion of men from a nursing school, that it was engaging in "educational affirmative action" by "compensat[ing] for discrimination against women." 458 U. S., at 727. Undertaking a "searching analysis," id. , at 728, the Court found no close resemblance between "the alleged objective" and "the actual purpose underlying the discriminatory classification," id. , at 730. Pursuing a similar inquiry here, we reach the same conclusion.

Neither recent nor distant history bears out Virginia's alleged pursuit of diversity through single-sex educational options. In 1839, when the Commonwealth established VMI, a range of educational opportunities for men and women was scarcely contemplated. Higher education at the time was considered dangerous for women;9 reflecting *537 widely held views about women's proper place, the Nation's first universities and colleges—for example, Harvard in Massachusetts, William and Mary in Virginia—admitted only men. See E. Farello, A History of the Education of Women in the United States 163 (1970). VMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the Commonwealth's flagship school, the University of Virginia, founded in 1819.

"[N]o struggle for the admission of women to a state university," a historian has recounted, "was longer drawn out, or developed more bitterness, than that at the University of Virginia." 2 T. Woody, A History of Women's Education in the United States 254 (1929) (History of Women's Education). In 1879, the State Senate resolved to look into the possibility of higher education for women, recognizing that Virginia "`has never, at any period of her history,' " provided for the higher education of her daughters, though she "`has liberally provided for the higher education of her sons.' " Ibid. (quoting 10 Educ. J. Va. 212 (1879)). Despite this recognition, no new opportunities were instantly open to women.10

Virginia eventually provided for several women's seminaries and colleges. Farmville Female Seminary became a public institution in 1884. See supra, at 521, n. 2. Two women's schools, Mary Washington College and James Madison University, were founded in 1908; another, Radford University, was founded in 1910. 766 F. Supp., at 1418-1419. By the mid-1970's, all four schools had become coeducational. Ibid.

Debate concerning women's admission as undergraduates at the main university continued well past the century's midpoint. Familiar arguments were rehearsed. If women *538 were admitted, it was feared, they "would encroach on the rights of men; there would be new problems of government, perhaps scandals; the old honor system would have to be changed; standards would be lowered to those of other coeducational schools; and the glorious reputation of the university, as a school for men, would be trailed in the dust." 2 History of Women's Education 255.

Ultimately, in 1970, "the most prestigious institution of higher education in Virginia," the University of Virginia, introduced coeducation and, in 1972, began to admit women on an equal basis with men. See Kirstein v. Rector and Visitors of Univ. of Virginia, 309 F. Supp. 184, 186 (ED Va. 1970). A three-judge Federal District Court confirmed: "Virginia may not now deny to women, on the basis of sex, educational opportunities at the Charlottesville campus that are not afforded in other institutions operated by the [S]tate." Id. , at 187.

Virginia describes the current absence of public single-sex higher education for women as "an historical anomaly." Brief for Cross-Petitioners 30. But the historical record indicates action more deliberate than anomalous: First, protection of women against higher education; next, schools for women far from equal in resources and stature to schools for men; finally, conversion of the separate schools to coeducation. The state legislature, prior to the advent of this controversy, had repealed "[a]ll Virginia statutes requiring individual institutions to admit only men or women." 766 F. Supp., at 1419. And in 1990, an official commission, "legislatively established to chart the future goals of higher education in Virginia," reaffirmed the policy "`of affording broad access" while maintaining "autonomy and diversity.' " 976 F. 2d, at 898-899 (quoting Report of the Virginia Commission on the University of the 21st Century). Significantly, the commission reported:

"`Because colleges and universities provide opportunities for students to develop values and learn from role *539 models, it is extremely important that they deal with faculty, staff, and students without regard to sex, race, or ethnic origin.' " Id. , at 899 (emphasis supplied by Court of Appeals deleted).

This statement, the Court of Appeals observed, "is the only explicit one that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions." Ibid.

Our 1982 decision in Mississippi Univ. for Women prompted VMI to reexamine its male-only admission policy. See 766 F. Supp., at 1427-1428. Virginia relies on that reexamination as a legitimate basis for maintaining VMI's single-sex character. See Reply Brief for Cross-Petitioners 6. A Mission Study Committee, appointed by the VMI Board of Visitors, studied the problem from October 1983 until May 1986, and in that month counseled against "change of VMI status as a single-sex college." See 766 F. Supp., at 1429 (internal quotation marks omitted). Whatever internal purpose the Mission Study Committee served—and however well meaning the framers of the report—we can hardly extract from that effort any commonwealth policy evenhandedly to advance diverse educational options. As the District Court observed, the Committee's analysis "primarily focuse[d] on anticipated difficulties in attracting females to VMI," and the report, overall, supplied "very little indication of how th[e] conclusion was reached." Ibid.

In sum, we find no persuasive evidence in this record that VMI's male-only admission policy "is in furtherance of a state policy of `diversity.' " See 976 F. 2d, at 899. No such policy, the Fourth Circuit observed, can be discerned from the movement of all other public colleges and universities in Virginia away from single-sex education. See ibid. That court also questioned "how one institution with autonomy, but with no authority over any other state institution, can give effect to a state policy of diversity among institutions." Ibid. A purpose genuinely to advance an array of educational *540 options, as the Court of Appeals recognized, is not served by VMI's historic and constant plan—a plan to "affor[d] a unique educational benefit only to males." Ibid. However "liberally" this plan serves the Commonwealth's sons, it makes no provision whatever for her daughters. That is not equal protection.

B

Virginia next argues that VMI's adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be "radical," so "drastic," Virginia asserts, as to transform, indeed "destroy," VMI's program. See Brief for Cross-Petitioners 34-36. Neither sex would be favored by the transformation, Virginia maintains: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would "eliminat[e] the very aspects of [the] program that distinguish [VMI] from . . . other institutions of higher education in Virginia." Id., at 34.

The District Court forecast from expert witness testimony, and the Court of Appeals accepted, that coeducation would materially affect "at least these three aspects of VMI's program—physical training, the absence of privacy, and the adversative approach." 976 F. 2d, at 896-897. And it is uncontested that women's admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. See Brief for Cross-Respondent 11, 29-30. It is also undisputed, however, that "the VMI methodology could be used to educate women." 852 F. Supp., at 481. The District Court even allowed that some women may prefer it to the methodology a women's college might pursue. See ibid. "[S]ome women, at least, would want to attend [VMI] if they had the opportunity," the District Court recognized, 766 F. Supp., at 1414, and "some women," the expert testimony established, "are *541 capable of all of the individual activities required of VMI cadets," id., at 1412. The parties, furthermore, agree that "some women can meet the physical standards [VMI] now impose[s] on men." 976 F. 2d, at 896. In sum, as the Court of Appeals stated, "neither the goal of producing citizen soldiers," VMI's raison d'être, "nor VMI's implementing methodology is inherently unsuitable to women." Id., at 899.

In support of its initial judgment for Virginia, a judgment rejecting all equal protection objections presented by the United States, the District Court made "findings" on "gender-based developmental differences." 766 F. Supp., at 1434-1435. These "findings" restate the opinions of Virginia's expert witnesses, opinions about typically male or typically female "tendencies." Id., at 1434. For example, "[m]ales tend to need an atmosphere of adversativeness," while "[f]emales tend to thrive in a cooperative atmosphere." Ibid. "I'm not saying that some women don't do well under [the] adversative model," VMI's expert on educational institutions testified, "undoubtedly there are some [women] who do"; but educational experiences must be designed "around the rule," this expert maintained, and not "around the exception." Ibid. (internal quotation marks omitted).

The United States does not challenge any expert witness estimation on average capacities or preferences of men and women. Instead, the United States emphasizes that time and again since this Court's turning point decision in Reed v. Reed, 404 U. S. 71 (1971), we have cautioned reviewing courts to take a "hard look" at generalizations or "tendencies" of the kind pressed by Virginia, and relied upon by the District Court. See O'Connor, Portia's Progress, 66 N. Y. U. L. Rev. 1546, 1551 (1991). State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on "fixed notions concerning the roles and abilities of males and females." Mississippi Univ. for Women, 458 U. S., at 725; see J. E. B., 511 U. S., at 139, n. 11 (equal protection principles, as applied to gender classifications, mean *542 state actors may not rely on "overbroad" generalizations to make "judgments about people that are likely to . . . perpetuate historical patterns of discrimination").

It may be assumed, for purposes of this decision, that most women would not choose VMI's adversative method. As Fourth Circuit Judge Motz observed, however, in her dissent from the Court of Appeals' denial of rehearing en banc, it is also probable that "many men would not want to be educated in such an environment." 52 F. 3d, at 93. (On that point, even our dissenting colleague might agree.) Education, to be sure, is not a "one size fits all" business. The issue, however, is not whether "women—or men—should be forced to attend VMI"; rather, the question is whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords. Ibid.

The notion that admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school,11is a judgment hardly proved,12 a prediction *543 hardly different from other "self-fulfilling prophec[ies]," see Mississippi Univ. for Women, 458 U. S., at 730, once routinely used to deny rights or opportunities. When women first sought admission to the bar and access to legal education, concerns of the same order were expressed. For example, in 1876, the Court of Common Pleas of Hennepin County, Minnesota, explained why women were thought ineligible for the practice of law. Women train and educate the young, the court said, which

"forbids that they shall bestow that time (early and late) and labor, so essential in attaining to the eminence to which the true lawyer should ever aspire. It cannot therefore be said that the opposition of courts to the admission of females to practice . . . is to any extent the outgrowth of . . . `old fogyism[.]' . . . [I]t arises rather from a comprehension of the magnitude of the responsibilities connected with the successful practice of law, and a desire to grade up the profession." In re Application of Martha Angle Dorsett to Be Admitted to Practice as Attorney and Counselor at Law (Minn. C. P. Hennepin Cty., 1876), in The Syllabi, Oct. 21, 1876, pp. 5, 6 (emphasis added).

A like fear, according to a 1925 report, accounted for Columbia Law School's resistance to women's admission, although

"[t]he faculty . . . never maintained that women could not master legal learning . . . . No, its argument has been . . . more practical. If women were admitted to *544 the Columbia Law School, [the faculty] said, then the choicer, more manly and red-blooded graduates of our great universities would go to the Harvard Law School!" The Nation, Feb. 18, 1925, p. 173.

Medical faculties similarly resisted men and women as partners in the study of medicine. See R. Morantz-Sanchez, Sympathy and Science: Women Physicians in American Medicine 51-54, 250 (1985); see also M. Walsh, "Doctors Wanted: No Women Need Apply" 121-122 (1977) (quoting E. Clarke, Medical Education of Women, 4 Boston Med. & Surg. J. 345, 346 (1869) ("`God forbid that I should ever see men and women aiding each other to display with the scalpel the secrets of the reproductive system . . . .' ")); cf. supra, at 536-537, n. 9. More recently, women seeking careers in policing encountered resistance based on fears that their presence would "undermine male solidarity," see F. Heidensohn, Women in Control? 201 (1992); deprive male partners of adequate assistance, see id. , at 184-185; and lead to sexual misconduct, see C. Milton et al., Women in Policing 32-33 (1974). Field studies did not confirm these fears. See Heidensohn, supra, at 92-93; P. Bloch & D. Anderson, Policewomen on Patrol: Final Report (1974).

Women's successful entry into the federal military academies,13 and their participation in the Nation's military forces,14 indicate that Virginia's fears for the future of VMI *545 may not be solidly grounded.15The Commonwealth's justification for excluding all women from "citizen-soldier" training for which some are qualified, in any event, cannot rank as "exceedingly persuasive," as we have explained and applied that standard.

Virginia and VMI trained their argument on "means" rather than "end," and thus misperceived our precedent. Single-sex education at VMI serves an "important governmental objective," they maintained, and exclusion of women is not only "substantially related," it is essential to that objective. By this notably circular argument, the "straightforward" test Mississippi Univ. for Women described, see 458 U. S., at 724-725, was bent and bowed.

The Commonwealth's misunderstanding and, in turn, the District Court's, is apparent from VMI's mission: to produce "citizen-soldiers," individuals

"`imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready . . . to defend their country in time of national peril.' " 766 F. Supp., at 1425 (quoting Mission Study Committee of the VMI Board of Visitors, Report, May 16, 1986).

Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the Commonwealth's *546 great goal is not substantially advanced by women's categorical exclusion, in total disregard of their individual merit, from the Commonwealth's premier "citizen-soldier" corps.16 Virginia, in sum, "has fallen far short of establishing the `exceedingly persuasive justification,' " Mississippi Univ. for Women, 458 U. S., at 731, that must be the solid base for any gender-defined classification.

VI

In the second phase of the litigation, Virginia presented its remedial plan—maintain VMI as a male-only college and create VWIL as a separate program for women. The plan met District Court approval. The Fourth Circuit, in turn, deferentially reviewed the Commonwealth's proposal and decided that the two single-sex programs directly served Virginia's reasserted purposes: single-gender education, and "achieving the results of an adversative method in a military environment." See 44 F. 3d, at 1236, 1239. Inspecting the VMI and VWIL educational programs to determine whether they "afford[ed] to both genders benefits comparable in substance, [if] not in form and detail," id., at 1240, the Court of Appeals concluded that Virginia had arranged for men and women opportunities "sufficiently comparable" to survive equal protection evaluation, id., at 1240-1241. The United States challenges this "remedial" ruling as pervasively misguided.

*547 A

A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in "the position they would have occupied in the absence of [discrimination]." See Milliken v. Bradley, 433 U. S. 267, 280 (1977) (internal quotation marks omitted). The constitutional violation in this suit is the categorical exclusion of women from an extraordinary educational opportunity afforded men. A proper remedy for an unconstitutional exclusion, we have explained, aims to "eliminate [so far as possible] the discriminatory effects of the past" and to "bar like discrimination in the future." Louisiana v. United States, 380 U. S. 145, 154 (1965).

Virginia chose not to eliminate, but to leave untouched, VMI's exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities.17 Having violated the Constitution's equal protection requirement, Virginia was obliged to show that its remedial proposal "directly address[ed] and relate[d] to" the violation, see Milliken, 433 U. S., at 282, i. e., the equal protection denied to women ready, willing, and able to benefit from educational *548 opportunities of the kind VMI offers. Virginia described VWIL as a "parallel program," and asserted that VWIL shares VMI's mission of producing "citizen-soldiers" and VMI's goals of providing "education, military training, mental and physical discipline, character . . . and leadership development." Brief for Respondents 24 (internal quotation marks omitted). If the VWIL program could not "eliminate the discriminatory effects of the past," could it at least "bar like discrimination in the future"? See Louisiana, 380 U. S., at 154. A comparison of the programs said to be "parallel" informs our answer. In exposing the character of, and differences in, the VMI and VWIL programs, we recapitulate facts earlier presented. See supra, at 520-523, 526-527.

VWIL affords women no opportunity to experience the rigorous military training for which VMI is famed. See 766 F. Supp., at 1413-1414 ("No other school in Virginia or in the United States, public or private, offers the same kind of rigorous military training as is available at VMI."); id. , at 1421 (VMI "is known to be the most challenging military school in the United States"). Instead, the VWIL program "deemphasize[s]" military education, 44 F. 3d, at 1234, and uses a "cooperative method" of education "which reinforces self-esteem," 852 F. Supp., at 476.

VWIL students participate in ROTC and a "largely ceremonial" Virginia Corps of Cadets, see 44 F. 3d, at 1234, but Virginia deliberately did not make VWIL a military institute. The VWIL House is not a military-style residence and VWIL students need not live together throughout the 4-year program, eat meals together, or wear uniforms during the schoolday. See 852 F. Supp., at 477, 495. VWIL students thus do not experience the "barracks" life "crucial to the VMI experience," the spartan living arrangements designed to foster an "egalitarian ethic." See 766 F. Supp., at 1423-1424. "[T]he most important aspects of the VMI educational experience occur in the barracks," the District Court *549 found, id., at 1423, yet Virginia deemed that core experience nonessential, indeed inappropriate, for training its female citizen-soldiers.

VWIL students receive their "leadership training" in seminars, externships, and speaker series, see 852 F. Supp., at 477, episodes and encounters lacking the "[p]hysical rigor, mental stress, . .. minute regulation of behavior, and indoctrination in desirable values" made hallmarks of VMI's citizen-soldier training, see 766 F. Supp., at 1421.18 Kept away from the pressures, hazards, and psychological bonding characteristic of VMI's adversative training, see id., at 1422, VWIL students will not know the "feeling of tremendous accomplishment" commonly experienced by VMI's successful cadets, id. , at 1426.

Virginia maintains that these methodological differences are "justified pedagogically," based on "important differences between men and women in learning and developmental needs," "psychological and sociological differences" Virginia describes as "real" and "not stereotypes." Brief for Respondents 28 (internal quotation marks omitted). The Task Force charged with developing the leadership program for women, drawn from the staff and faculty at Mary Baldwin College, "determined that a military model and, especially VMI's adversative method, would be wholly inappropriate for educating and training most women. " 852 F. Supp., at 476 (emphasis added). See also 44 F. 3d, at 1233-1234 (noting Task Force conclusion that, while "some women would be suited to and interested in [a VMI-style experience]," VMI's adversative method "would not be effective for women as a group " (emphasis added)). The Commonwealth *550 embraced the Task Force view, as did expert witnesses who testified for Virginia. See 852 F. Supp., at 480-481.

As earlier stated, see supra, at 541-542, generalizations about "the way women are," estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Notably, Virginia never asserted that VMI's method of education suits most men. It is also revealing that Virginia accounted for its failure to make the VWIL experience "the entirely militaristic experience of VMI" on the ground that VWIL "is planned for women who do not necessarily expect to pursue military careers." 852 F. Supp., at 478. By that reasoning, VMI's "entirely militaristic" program would be inappropriate for men in general or as a group, for "[o]nly about 15% of VMI cadets enter career military service." See 766 F. Supp., at 1432.

In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realities: VMI's "implementing methodology" is not "inherently unsuitable to women," 976 F. 2d, at 899; "some women . . . do well under [the] adversative model," 766 F. Supp., at 1434 (internal quotation marks omitted); "some women, at least, would want to attend [VMI] if they had the opportunity," id., at 1414; "some women are capable of all of the individual activities required of VMI cadets," id., at 1412, and "can meet the physical standards [VMI] now impose[s] on men," 976 F. 2d, at 896. It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted,19 a remedy that will end their *551 exclusion from a state-supplied educational opportunity for which they are fit, a decree that will "bar like discrimination in the future." Louisiana, 380 U. S., at 154.

B

In myriad respects other than military training, VWIL does not qualify as VMI's equal. VWIL's student body, faculty, course offerings, and facilities hardly match VMI's. Nor can the VWIL graduate anticipate the benefits associated with VMI's 157-year history, the school's prestige, and its influential alumni network.

Mary Baldwin College, whose degree VWIL students will gain, enrolls first-year women with an average combined SAT score about 100 points lower than the average score for VMI freshmen. 852 F. Supp., at 501. The Mary Baldwin faculty holds "significantly fewer Ph. D.'s," id. , at 502, and receives substantially lower salaries, see Tr. 158 (testimony of James Lott, Dean of Mary Baldwin College), than the faculty at VMI.

Mary Baldwin does not offer a VWIL student the range of curricular choices available to a VMI cadet. VMI awards baccalaureate degrees in liberal arts, biology, chemistry, civil engineering, electrical and computer engineering, and mechanical engineering. See 852 F. Supp., at 503; Virginia Military Institute: More than an Education 11 (Govt. exh. 75, *552 lodged with Clerk of this Court). VWIL students attend a school that "does not have a math and science focus," 852 F. Supp., at 503; they cannot take at Mary Baldwin any courses in engineering or the advanced math and physics courses VMI offers, see id., at 477.

For physical training, Mary Baldwin has "two multipurpose fields" and "[o]ne gymnasium." Id. , at 503. VMI has "an NCAA competition level indoor track and field facility; a number of multi-purpose fields; baseball, soccer and lacrosse fields; an obstacle course; large boxing, wrestling and martial arts facilities; an 11-laps-to-the-mile indoor running course; an indoor pool; indoor and outdoor rifle ranges; and a football stadium that also contains a practice field and outdoor track." Ibid.

Although Virginia has represented that it will provide equal financial support for in-state VWIL students and VMI cadets, id. , at 483, and the VMI Foundation has agreed to endow VWIL with $5.4625 million, id. , at 499, the difference between the two schools' financial reserves is pronounced. Mary Baldwin's endowment, currently about $19 million, will gain an additional $35 million based on future commitments; VMI's current endowment, $131 million—the largest public college per-student endowment in the Nation—will gain $220 million. Id. , at 503.

The VWIL student does not graduate with the advantage of a VMI degree. Her diploma does not unite her with the legions of VMI "graduates [who] have distinguished themselves" in military and civilian life. See 976 F. 2d, at 892-893. "[VMI] alumni are exceptionally close to the school," and that closeness accounts, in part, for VMI's success in attracting applicants. See 766 F. Supp., at 1421. A VWIL graduate cannot assume that the "network of business owners, corporations, VMI graduates and non-graduate employers . . . interested in hiring VMI graduates," 852 F. Supp., at 499, will be equally responsive to her search for employment, *553 see 44 F. 3d, at 1250 (Phillips, J., dissenting) ("the powerful political and economic ties of the VMI alumni network cannot be expected to open" for graduates of the fledgling VWIL program).

Virginia, in sum, while maintaining VMI for men only, has failed to provide any "comparable single-gender women's institution." Id. , at 1241. Instead, the Commonwealth has created a VWIL program fairly appraised as a "pale shadow" of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence. See id., at 1250 (Phillips, J., dissenting).

Virginia's VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court's 1946 ruling that, given the equal protection guarantee, African-Americans could not be denied a legal education at a state facility. See Sweatt v. Painter, 339 U. S. 629 (1950). Reluctant to admit African-Americans to its flagship University of Texas Law School, the State set up a separate school for Heman Sweatt and other black law students. Id. , at 632. As originally opened, the new school had no independent faculty or library, and it lacked accreditation. Id. , at 633. Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportunities for the study of law "substantially equivalent to those offered by the State to white students at the University of Texas." Id. , at 632 (internal quotation marks omitted).

Before this Court considered the case, the new school had gained "a faculty of five full-time professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and legal aid association; and one alumnus who ha[d] become a member of the Texas Bar." Id. , at 633. This Court contrasted resources at the new school with those at the school from which Sweatt had been excluded. The University of Texas Law School had a full-time faculty of 16, a student body of 850, a library containing over *554 65,000 volumes, scholarship funds, a law review, and moot court facilities. Id. , at 632-633.

More important than the tangible features, the Court emphasized, are "those qualities which are incapable of objective measurement but which make for greatness" in a school, including "reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige." Id. , at 634. Facing the marked differences reported in the Sweatt opinion, the Court unanimously ruled that Texas had not shown "substantial equality in the [separate] educational opportunities" the State offered. Id. , at 633. Accordingly, the Court held, the Equal Protection Clause required Texas to admit AfricanAmericans to the University of Texas Law School. Id. , at 636. In line with Sweatt, we rule here that Virginia has not shown substantial equality in the separate educational opportunities the Commonwealth supports at VWIL and VMI.

C

When Virginia tendered its VWIL plan, the Fourth Circuit did not inquire whether the proposed remedy, approved by the District Court, placed women denied the VMI advantage in "the position they would have occupied in the absence of [discrimination]." Milliken, 433 U. S., at 280 (internal quotation marks omitted). Instead, the Court of Appeals considered whether the Commonwealth could provide, with fidelity to the equal protection principle, separate and unequal educational programs for men and women.

The Fourth Circuit acknowledged that "the VWIL degree from Mary Baldwin College lacks the historical benefit and prestige of a degree from VMI." 44 F. 3d, at 1241. The Court of Appeals further observed that VMI is "an ongoing and successful institution with a long history," and there remains no "comparable single-gender women's institution." Ibid. Nevertheless, the appeals court declared the substantially different and significantly unequal VWIL program satisfactory. *555 The court reached that result by revising the applicable standard of review. The Fourth Circuit displaced the standard developed in our precedent, see supra, at 532-534, and substituted a standard of its own invention.

We have earlier described the deferential review in which the Court of Appeals engaged, see supra, at 528-529, a brand of review inconsistent with the more exacting standard our precedent requires, see supra, at 532-534. Quoting in part from Mississippi Univ. for Women, the Court of Appeals candidly described its own analysis as one capable of checking a legislative purpose ranked as "pernicious," but generally according "deference to [the] legislative will." 44 F. 3d, at 1235, 1236. Recognizing that it had extracted from our decisions a test yielding "little or no scrutiny of the effect of a classification directed at [single-gender education]," the Court of Appeals devised another test, a "substantive comparability" inquiry, id., at 1237, and proceeded to find that new test satisfied, id. , at 1241.

The Fourth Circuit plainly erred in exposing Virginia's VWIL plan to a deferential analysis, for "all gender-based classifications today" warrant "heightened scrutiny." See J. E. B., 511 U. S., at 136. Valuable as VWIL may prove for students who seek the program offered, Virginia's remedy affords no cure at all for the opportunities and advantages withheld from women who want a VMI education and can make the grade. See supra, at 549-554.20 In sum, Virginia's *556 remedy does not match the constitutional violation; the Commonwealth has shown no "exceedingly persuasive justification" for withholding from women qualified for the experience premier training of the kind VMI affords.

VII

A generation ago, "the authorities controlling Virginia higher education," despite long established tradition, agreed "to innovate and favorably entertain[ed] the [then] relatively new idea that there must be no discrimination by sex in offering educational opportunity." Kirstein, 309 F. Supp., at 186. Commencing in 1970, Virginia opened to women "educational opportunities at the Charlottesville campus that [were] not afforded in other [state-operated] institutions." Id., at 187; see supra, at 538. A federal court approved the Commonwealth's innovation, emphasizing that the University of Virginia "offer[ed] courses of instruction . . . not available elsewhere." 309 F. Supp., at 187. The court further noted: "[T]here exists at Charlottesville a `prestige' factor *557 [not paralleled in] other Virginia educational institutions." Ibid.

VMI, too, offers an educational opportunity no other Virginia institution provides, and the school's "prestige"—associated with its success in developing "citizen-soldiers"—is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a "parallel program," with a faculty less impressively credentialed and less well paid, more limited course offerings, fewer opportunities for military training and for scientific specialization. Cf. Sweatt, 339 U. S., at 633. VMI, beyond question, "possesses to a far greater degree" than the VWIL program "those qualities which are incapable of objective measurement but which make for greatness in a . . . school," including "position and influence of the alumni, standing in the community, traditions and prestige." Id., at 634. Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection.

A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded.21 VMI's story continued as our comprehension of "We the People" expanded. See supra, at 532, n. 6. *558 There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the "more perfect Union."

* * *

For the reasons stated, the initial judgment of the Court of Appeals, 976 F. 2d 890 (CA4 1992), is affirmed, the final judgment of the Court of Appeals, 44 F. 3d 1229 (CA4 1995), is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas took no part in the consideration or decision of these cases.

1

During the Civil War, school teaching became a field dominated by women. See A. Scott, The Southern Lady: From Pedestal to Politics, 1830-1930, p. 82 (1970).

2

Historically, most of Virginia's public colleges and universities were single sex; by the mid-1970's, however, all except VMI had become coeducational. 766 F. Supp. 1407, 1418-1419 (WD Va. 1991). For example, Virginia's legislature incorporated Farmville Female Seminary Association in 1839, the year VMI opened. 1839 Va. Acts, ch. 167. Originally providing instruction in "English, Latin, Greek, French, and piano" in a "home atmosphere," R. Sprague, Longwood College: A History 7-8, 15 (1989) (Longwood College), Farmville Female Seminary became a public institution in 1884 with a mission to train "white female teachers for public schools," 1884 Va. Acts, ch. 311. The school became Longwood College in 1949, Longwood College 136, and introduced coeducation in 1976, id. , at 133.

3

The District Court allowed the VMI Foundation and the VMI Alumni Association to intervene as defendants. 766 F. Supp., at 1408.

4

Six judges voted to rehear the case en banc, four voted against rehearing, and three were recused. The Fourth Circuit's local Rule permits rehearing en banc only on the vote of a majority of the Circuit's judges in regular active service (currently 13) without regard to recusals. See 52 F. 3d, at 91, and n. 1.

5

As Thomas Jefferson stated the view prevailing when the Constitution was new:

"Were our State a pure democracy . . . there would yet be excluded from their deliberations . . . [w]omen, who, to prevent depravation of morals and ambiguity of issue, could not mix promiscuously in the public meetings of men." Letter from Thomas Jefferson to Samuel Kercheval (Sept. 5, 1816), in 10 Writings of Thomas Jefferson 45-46, n. 1 (P. Ford ed. 1899).

6

The Court has thus far reserved most stringent judicial scrutiny for classifications based on race or national origin, but last Term observed that strict scrutiny of such classifications is not inevitably "fatal in fact." Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 237 (1995) (internal quotation marks omitted).

7

Several amici have urged that diversity in educational opportunities is an altogether appropriate governmental pursuit and that single-sex schools can contribute importantly to such diversity. Indeed, it is the mission of some single-sex schools "to dissipate, rather than perpetuate, traditional gender classifications." See Brief for Twenty-six Private Women's Colleges as Amici Curiae 5. We do not question the Commonwealth's prerogative evenhandedly to support diverse educational opportunities. We address specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as "unique," see 766 F. Supp., at 1413, 1432; 976 F. 2d, at 892, an opportunity available only at Virginia's premier military institute, the Commonwealth's sole single-sex public university or college. Cf. Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 720, n. 1 (1982) ("Mississippi maintains no other single-sex public university or college. Thus, we are not faced with the question of whether States can provide `separate but equal' undergraduate institutions for males and females.").

8

On this point, the dissent sees fire where there is no flame. See post, at 596-598, 598-600. "Both men and women can benefit from a single-sex education," the District Court recognized, although "the beneficial effects" of such education, the court added, apparently "are stronger among women than among men." 766 F. Supp., at 1414. The United States does not challenge that recognition. Cf. C. Jencks & D. Riesman, The Academic Revolution 297-298 (1968):

"The pluralistic argument for preserving all-male colleges is uncomfortably similar to the pluralistic argument for preserving all-white colleges . . . . The all-male college would be relatively easy to defend if it emerged from a world in which women were established as fully equal to men. But it does not. It is therefore likely to be a witting or unwitting device for preserving tacit assumptions of male superiority—assumptions for which women must eventually pay."

9

Dr. Edward H. Clarke of Harvard Medical School, whose influential book, Sex in Education, went through 17 editions, was perhaps the most well-known speaker from the medical community opposing higher education for women. He maintained that the physiological effects of hard study and academic competition with boys would interfere with the development of girls' reproductive organs. See E. Clarke, Sex in Education 38-39, 62-63 (1873); id. , at 127 ("identical education of the two sexes is a crime before God and humanity, that physiology protests against, and that experience weeps over"); see also H. Maudsley, Sex in Mind and in Education 17 (1874) ("It is not that girls have not ambition, nor that they fail generally to run the intellectual race [in coeducational settings], but it is asserted that they do it at a cost to their strength and health which entails life-long suffering, and even incapacitates them for the adequate performance of the natural functions of their sex."); C. Meigs, Females and Their Diseases 350 (1848) (after five or six weeks of "mental and educational discipline," a healthy woman would "lose . . . the habit of menstruation" and suffer numerous ills as a result of depriving her body for the sake of her mind).

10

Virginia's Superintendent of Public Instruction dismissed the coeducational idea as "`repugnant to the prejudices of the people' " and proposed a female college similar in quality to Girton, Smith, or Vassar.2 History of Women's Education 254 (quoting Dept. of Interior, 1 Report of Commissioner of Education, H. R. Doc. No. 5, 58th Cong., 2d Sess., 438 (1904)).

11

See post, at 566, 598-599, 603. Forecasts of the same kind were made regarding admission of women to the federal military academies. See, e. g., Hearings on H. R. 9832 et al. before Subcommittee No. 2 of the House Committee on Armed Services, 93d Cong., 2d Sess., 137 (1975) (statement of Lt. Gen. A. P. Clark, Superintendent of U. S. Air Force Academy) ("It is my considered judgment that the introduction of female cadets will inevitably erode this vital atmosphere."); id., at 165 (statement of Hon. H. H. Callaway, Secretary of the Army) ("Admitting women to West Point would irrevocably change the Academy. . . . The Spartan atmosphere— which is so important to producing the final product—would surely be diluted, and would in all probability disappear.").

12

See 766 F. Supp., at 1413 (describing testimony of expert witness David Riesman: "[I]f VMI were to admit women, it would eventually find it necessary to drop the adversative system altogether, and adopt a system that provides more nurturing and support for the students."). Such judgments have attended, and impeded, women's progress toward full citizenship stature throughout our Nation's history. Speaking in 1879 in support of higher education for females, for example, Virginia State Senator C. T. Smith of Nelson recounted that legislation proposed to protect the property rights of women had encountered resistance. 10 Educ. J. Va. 213 (1879). A Senator opposing the measures objected that "there [was] no formal call for the [legislation]," and "depicted in burning eloquence the terrible consequences such laws would produce." Ibid. The legislation passed, and a year or so later, its sponsor, C. T. Smith, reported that "not one of [the forecast "terrible consequences"] has or ever will happen, even unto the sounding of Gabriel's trumpet." Ibid. See also supra, at 537-538.

13

Women cadets have graduated at the top of their class at every federal military academy. See Brief for Lieutenant Colonel Rhonda Cornum et al. as Amici Curiae 11, n. 25; cf. Defense Advisory Committee on Women in the Services, Report on the Integration and Performance of Women at West Point 64 (1992).

14

Brief for Lieutenant Colonel Rhonda Cornum, supra, at 5-9 (reporting the vital contributions and courageous performance of women in the military); see Mintz, President Nominates 1st Woman to Rank of Three-Star General, Washington Post, Mar. 27, 1996, p. A19, col. 1 (announcing President's nomination of Marine Corps Major General Carol Mutter to rank of Lieutenant General; Mutter will head corps manpower and planning); Tousignant, A New Era for the Old Guard, Washington Post, Mar. 23, 1996, p. C1, col. 2 (reporting admission of Sergeant Heather Johnsen to eliteInfantry unit that keeps round-the-clock vigil at Tomb of the Unknowns in Arlington National Cemetery).

15

Inclusion of women in settings where, traditionally,they were not wanted inevitably entails a period of adjustment. As one West Point cadet squad leader recounted: "[T]he classes of `78 and `79 see the women as women, but the classes of `80 and `81 see them as classmates." U. S. Military Academy, A. Vitters, Report of Admission of Women (Project Athena II) 84 (1978) (internal quotation marks omitted).

16

VMI has successfully managed another notable change. The school admitted its first African-American cadets in 1968. See The VMI Story 347-349 (students no longer sing "Dixie," salute the Confederate flag or the tomb of General Robert E. Lee at ceremonies and sports events). As the District Court noted, VMI established a program on "retention of black cadets" designed to offer academic and social-cultural support to "minority members of a dominantly white and tradition-oriented student body." 766 F. Supp., at 1436-1437. The school maintains a "special recruitment program for blacks" which, the District Court found, "has had little,if any, effect on VMI's method of accomplishing its mission." Id., at 1437.

17

As earlier observed, see supra, at 529, Judge Phillips, in dissent, measured Virginia's plan against a paradigm arrangement, one that "could survive equal protection scrutiny": single-sex schools with "substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, . . . faculty[,] and library resources." 44 F. 3d 1229, 1250 (CA4 1995). Cf. Bray v. Lee, 337 F. Supp. 934 (Mass. 1972) (holding inconsistent with the Equal Protection Clause admission of males to Boston's Boys Latin School with a test score of 120 or higher (up to a top score of 200) while requiring a score, on the same test, of at least 133 for admission of females to Girls Latin School, but not ordering coeducation). Measuring VMI/VWIL against the paradigm, Judge Phillips said, "reveals how far short the [Virginia] plan falls from providing substantially equal tangible and intangible educational benefits to men and women." 44 F. 3d, at 1250.

18

Both programs include an honor system. Students at VMI are expelled forthwith for honor code violations, see 766 F. Supp., at 1423; the system for VWIL students, see 852 F. Supp., at 496-497, is less severe, see Tr. 414-415 (testimony of Mary Baldwin College President Cynthia Tyson).

19

Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs. See Brief for Petitioner 27-29; cf.note following 10 U. S. C. § 4342 (academic and other standards for women admitted to the Military, Naval, and Air Force Academies "shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals"). Experience shows such adjustments are manageable. See U. S. Military Academy, A. Vitters, N. Kinzer, & J. Adams, Report of Admission of Women (Project Athena I-IV) (1977-1980) (4-year longitudinal study of the admission of women to West Point); Defense Advisory Committee on Women in the Services, Report on the Integration and Performance of Women at West Point 17-18 (1992).

20

Virginia's prime concern, it appears, is that "plac[ing] men and women into the adversative relationship inherent in the VMI program . . . would destroy, at least for that period of the adversative training, any sense of decency that still permeates the relationship between the sexes." 44 F. 3d, at 1239; see supra, at 540-546. It is an ancient and familiar fear. Compare In re Lavinia Goodell, 39 Wis. 232, 246 (1875) (denying female applicant's motion for admission to the bar of its court, Wisconsin Supreme Court explained: "Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety."), with Levine, Closing Comments, 6 Law & Inequality 41 (1988) (presentation at Eighth Circuit Judicial Conference, Colorado Springs, Colo., July 17, 1987) (footnotes omitted):

"Plato questioned whether women should be afforded equal opportunity to become guardians, those elite Rulers of Platonic society. Ironically, in that most undemocratic system of government, the Republic, women's native ability to serve as guardians was not seriously questioned. The concern was over the wrestling and exercise class in which all candidates for guardianship had to participate, for rigorous physical and mental training were prerequisites to attain the exalted status of guardian. And in accord with Greek custom, those exercise classes were conducted in the nude. Plato concluded that their virtue would clothe the women's nakedness and that Platonic society would not thereby be deprived of the talent of qualified citizens for reasons of mere gender."

For Plato's full text on the equality of women, see 2 The Dialogues of Plato 302-312 (B. Jowett transl., 4th ed. 1953). Virginia, not bound to ancient Greek custom in its "rigorous physical and mental training" programs, could more readily make the accommodations necessary to draw on "the talent of [all] qualified citizens." Cf. supra, at 550-551, n. 19.

21

R. Morris, The Forging of the Union, 1781-1789, p. 193 (1987); see id. , at 191, setting out letter to a friend from Massachusetts patriot (later second President) John Adams, on the subject of qualifications for voting in his home State:

"[I]t is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it. New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level." Letter from John Adams to James Sullivan (May 26, 1776), in 9 Works of John Adams 378 (C. Adams ed. 1854).

Chief Justice Rehnquist, concurring in the judgment.

The Court holds first that Virginia violates the Equal Protection Clause by maintaining the Virginia Military Institute's (VMI's) all-male admissions policy, and second that establishing the Virginia Women's Institute for Leadership (VWIL) program does not remedy that violation. While I agree with these conclusions, I disagree with the Court's analysis and so I write separately.

I

Two decades ago in Craig v. Boren, 429 U. S. 190, 197 (1976), we announced that "[t]o withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." We have adhered to that standard of scrutiny ever since. See Califano v. Goldfarb, 430 U. S. 199, 210-211 (1977); Califano v. Webster, 430 U. S. 313, 316-317 (1977); Orr v. Orr, 440 U. S. 268, 279 (1979); Caban v. Mohammed, 441 U. S. 380, 388 (1979); Davis v. Passman, 442 U. S. 228, 234-235, 235, n. 9 (1979); Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 273 (1979); *559 Califano v. Westcott, 443 U. S. 76, 85 (1979); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150 (1980); Kirchberg v. Feenstra, 450 U. S. 455, 459-460 (1981); Michael M. v. Superior Court, Sonoma Cty., 450 U. S. 464, 469 (1981); Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982); Heckler v. Mathews, 465 U. S. 728, 744 (1984); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 137, n. 6 (1994). While the majority adheres to this test today, ante, at 524, 533, it also says that the Commonwealth must demonstrate an "`exceedingly persuasive justification' " to support a gender-based classification. See ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556. It is unfortunate that the Court thereby introduces an element of uncertainty respecting the appropriate test.

While terms like "important governmental objective" and "substantially related" are hardly models of precision, they have more content and specificity than does the phrase "exceedingly persuasive justification." That phrase is best confined, as it was first used, as an observation on the difficulty of meeting the applicable test, not as a formulation of the test itself. See, e. g., Feeney, supra, at 273 ("[T]hese precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment require an exceedingly persuasive justification"). To avoid introducing potential confusion, I would have adhered more closely to our traditional, "firmly established," Hogan, supra, at 723; Heckler, supra, at 744, standard that a gender-based classification "must bear a close and substantial relationship to important governmental objectives." Feeney, supra, at 273.

Our cases dealing with gender discrimination also require that the proffered purpose for the challenged law be the actual purpose. See ante, at 533, 535-536. It is on this ground that the Court rejects the first of two justifications Virginia offers for VMI's single-sex admissions policy, namely, the goal of diversity among its public educational institutions. While I ultimately agree that the Commonwealth *560 has not carried the day with this justification, I disagree with the Court's method of analyzing the issue.

VMI was founded in 1839, and, as the Court notes, ante, at 536-537, admission was limited to men because under the then-prevailing view men, not women, were destined for higher education. However misguided this point of view may be by present-day standards, it surely was not unconstitutional in 1839. The adoption of the Fourteenth Amendment, with its Equal Protection Clause, was nearly 30 years in the future. The interpretation of the Equal Protection Clause to require heightened scrutiny for gender discrimination was yet another century away.

Long after the adoption of the Fourteenth Amendment, and well into this century, legal distinctions between men and women were thought to raise no question under the Equal Protection Clause. The Court refers to our decision in Goesaert v. Cleary, 335 U. S. 464 (1948). Likewise representing that now abandoned view was Hoyt v. Florida, 368 U. S. 57 (1961), where the Court upheld a Florida system of jury selection in which men were automatically placed on jury lists, but women were placed there only if they expressed an affirmative desire to serve. The Court noted that despite advances in women's opportunities, the "woman is still regarded as the center of home and family life." Id. , at 62.

Then, in 1971, we decided Reed v. Reed, 404 U. S. 71, which the Court correctly refers to as a seminal case. But its facts have nothing to do with admissions to any sort of educational institution. An Idaho statute governing the administration of estates and probate preferred men to women if the other statutory qualifications were equal. The statute's purpose, according to the Idaho Supreme Court, was to avoid hearings to determine who was better qualified as between a man and a woman both applying for letters of administration. This Court held that such a rule violated the Fourteenth Amendment because "a mandatory preference to members of either *561 sex over members of the other, merely to accomplish the elimination of hearings," was an "arbitrary legislative choice forbidden by the Equal Protection Clause." Id. , at 76. The brief opinion in Reed made no mention of either Goesaert or Hoyt.

Even at the time of our decision in Reed v. Reed, therefore, Virginia and VMI were scarcely on notice that its holding would be extended across the constitutional board. They were entitled to believe that "one swallow doesn't make a summer" and await further developments. Those developments were 11 years in coming. In Mississippi Univ. for Women v. Hogan, supra, a case actually involving a single-sex admissions policy in higher education, the Court held that the exclusion of men from a nursing program violated the Equal Protection Clause. This holding did place Virginia on notice that VMI's men-only admissions policy was open to serious question.

The VMI Board of Visitors, in response, appointed a Mission Study Committee to examine "the legality and wisdom of VMI's single-sex policy in light of" Hogan. 766 F. Supp. 1407, 1427 (WD Va. 1991). But the committee ended up cryptically recommending against changing VMI's status as a single-sex college. After three years of study, the committee found "`no information' " that would warrant a change in VMI's status. Id. , at 1429. Even the District Court, ultimately sympathetic to VMI's position, found that "[t]he Report provided very little indication of how [its] conclusion was reached" and that "[t]he one and one-half pages in the committee's final report devoted to analyzing the information it obtained primarily focuses on anticipated difficulties in attracting females to VMI." Ibid. The reasons given in the report for not changing the policy were the changes that admission of women to VMI would require, and the likely effect of those changes on the institution. That VMI would have to change is simply not helpful in addressing the constitutionality of the status after Hogan.

*562 Before this Court, Virginia has sought to justify VMI's single-sex admissions policy primarily on the basis that diversity in education is desirable, and that while most of the public institutions of higher learning in the Commonwealth are coeducational, there should also be room for single-sex institutions. I agree with the Court that there is scant evidence in the record that this was the real reason that Virginia decided to maintain VMI as men only.* But, unlike the majority, I would consider only evidence that postdates our decision in Hogan, and would draw no negative inferences from the Commonwealth's actions before that time. I think that after Hogan, the Commonwealth was entitled to reconsider its policy with respect to VMI, and not to have earlier justifications, or lack thereof, held against it.

Even if diversity in educational opportunity were the Commonwealth's actual objective, the Commonwealth's position would still be problematic. The difficulty with its position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women. When Hogan placed Virginia on notice that *563 VMI's admissions policy possibly was unconstitutional, VMI could have dealt with the problem by admitting women; but its governing body felt strongly that the admission of women would have seriously harmed the institution's educational approach. Was there something else the Commonwealth could have done to avoid an equal protection violation? Since the Commonwealth did nothing, we do not have to definitively answer that question.

I do not think, however, that the Commonwealth's options were as limited as the majority may imply. The Court cites, without expressly approving it, a statement from the opinion of the dissenting judge in the Court of Appeals, to the effect that the Commonwealth could have "simultaneously opened single-gender undergraduate institutions having substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, and faculty and library resources." Ante, at 529-530 (internal quotation marks omitted). If this statement is thought to exclude other possibilities, it is too stringent a requirement. VMI had been in operation for over a century and a half, and had an established, successful, and devoted group of alumni. No legislative wand could instantly call into existence a similar institution for women; and it would be a tremendous loss to scrap VMI's history and tradition. In the words of Grover Cleveland's second inaugural address, the Commonwealth faced a condition, not a theory. And it was a condition that had been brought about, not through defiance of decisions construing gender bias under the Equal Protection Clause, but, until the decision in Hogan, a condition that had not appeared to offend the Constitution. Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation. I do not believe the Commonwealth was faced with the stark choice of either admitting women to VMI, on the *564 one hand, or abandoning VMI and starting from scratch for both men and women, on the other.

But, as I have noted, neither the governing board of VMI nor the Commonwealth took any action after 1982. If diversity in the form of single-sex, as well as coeducational, institutions of higher learning were to be available to Virginians, that diversity had to be available to women as well as to men.

The dissent criticizes me for "disregarding the four all-women's private colleges in Virginia (generously assisted by public funds)." Post, at 595. The private women's colleges are treated by the Commonwealth exactly as all other private schools are treated, which includes the provision of tuition-assistance grants to Virginia residents. Virginia gives no special support to the women's single-sex education. But obviously, the same is not true for men's education. Had the Commonwealth provided the kind of support for the private women's schools that it provides for VMI, this may have been a very different case. For in so doing, the Commonwealth would have demonstrated that its interest in providing a single-sex education for men was to some measure matched by an interest in providing the same opportunity for women.

Virginia offers a second justification for the single-sex admissions policy: maintenance of the adversative method. I agree with the Court that this justification does not serve an important governmental objective. A State does not have substantial interest in the adversative methodology unless it is pedagogically beneficial. While considerable evidence shows that a single-sex education is pedagogically beneficial for some students, see 766 F. Supp., at 1414, and hence a State may have a valid interest in promoting that methodology, there is no similar evidence in the record that an adversative method is pedagogically beneficial or is any more likely to produce character traits than other methodologies.

*565 II

The Court defines the constitutional violation in these cases as "the categorical exclusion of women from an extraordinary educational opportunity afforded to men." Ante, at 547. By defining the violation in this way, and by emphasizing that a remedy for a constitutional violation must place the victims of discrimination in "`the position they would have occupied in the absence of [discrimination],' " ibid. , the Court necessarily implies that the only adequate remedy would be the admission of women to the all-male institution. As the foregoing discussion suggests, I would not define the violation in this way; it is not the "exclusion of women" that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any—much less a comparable—institution for women.

Accordingly, the remedy should not necessarily require either the admission of women to VMI or the creation of a VMI clone for women. An adequate remedy in my opinion might be a demonstration by Virginia that its interest in educating men in a single-sex environment is matched by its interest in educating women in a single-sex institution. To demonstrate such, the Commonwealth does not need to create two institutions with the same number of faculty Ph. D.'s, similar SAT scores, or comparable athletic fields. See ante, at 551-552. Nor would it necessarily require that the women's institution offer the same curriculum as the men's; one could be strong in computer science, the other could be strong in liberal arts. It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber.

If a State decides to create single-sex programs, the State would, I expect, consider the public's interest and demand in designing curricula. And rightfully so. But the State should avoid assuming demand based on stereotypes; it must not assume a priori, without evidence, that there would be *566 no interest in a women's school of civil engineering, or in a men's school of nursing.

In the end, the women's institution Virginia proposes, VWIL, fails as a remedy, because it is distinctly inferior to the existing men's institution and will continue to be for the foreseeable future. VWIL simply is not, in any sense, the institution that VMI is. In particular, VWIL is a program appended to a private college, not a self-standing institution; and VWIL is substantially underfunded as compared to VMI. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy.

*

The dissent equates our conclusion that VMI's "asserted interest in promoting diversity" is not "`genuine,' " with a "charge" that the diversity rationale is "a pretext for discriminating against women." Post, at 579-580. Of course, those are not the same thing. I do not read the Court as saying that the diversity rationale is a pretext for discrimination, and I would not endorse such a proposition. We may find that diversity was not the Commonwealth's real reason without suggesting, or having to show, that the real reason was "antifeminism," post, at 580. Our cases simply require that the proffered purpose for the challenged gender classification be the actual purpose, although not necessarily recorded. See ante, at 533, 535-536. The dissent also says that the interest in diversity is so transparent that having to articulate it is "absurd on its face."Post, at 592. Apparently, that rationale was not obvious to the Mission Study Committee which failed to list it among its reasons for maintaining VMI's all-men admissions policy.

Justice Scalia, dissenting.

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: It explicitly rejects the finding that there exist "gender-based developmental differences" supporting Virginia's restriction of the "adversative" method to only a men's institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution's character. As to precedent: It drastically revises our established standards for reviewing sex-based classifications. And as to history: It counts for nothing the long tradition, enduring down to the present, of men's military colleges supported by both States and the Federal Government.

Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were—as every age is, including our own, with regard to matters it cannot guess, because it simply does not *567 consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy—so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States—the old one—takes no sides in this educational debate, I dissent.

I

I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: "rational basis" scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state "classifications based on race or national origin and classifications affecting fundamental rights," Clark v. Jeter, 486 U. S. 456, 461 (1988) (citation omitted). It is my position that the term "fundamental rights" should be limited to "interest[s] traditionally protected by our society," Michael H. *568 v. Gerald D., 491 U. S. 110, 122 (1989) (plurality opinion of Scalia, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider "fundamental." We have no established criterion for "intermediate scrutiny" either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content-neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex. See, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 662 (1994); Mills v. Habluetzel, 456 U. S. 91, 98-99 (1982); Craig v. Boren, 429 U. S. 190, 197 (1976).

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that "equal protection" our society has always accorded in the past. But in my view the function of this Court is to preserve our society's values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede—and indeed ought to be crafted so as to reflect —those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts. More specifically, it is my view that "when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down." Rutan v. Republican Party of Ill., 497 U. S. 62, 95 (1990) (Scalia, J., *569 dissenting). The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment. See, e. g., Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604 (1990) (plurality opinion of Scalia, J.) (Due Process Clause); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 156-163 (1994) (Scalia, J., dissenting) (Equal Protection Clause); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 979-984, 1000-1001 (1992) (Scalia, J., dissenting) (various alleged "penumbras").

The all-male constitution of VMI comes squarely within such a governing tradition. Founded by the Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always admitted only men. And in that regard it has not been unusual. For almost all of VMI's more than a century and a half of existence, its single-sex status reflected the uniform practice for government-supported military colleges. Another famous Southern institution, The Citadel, has existed as a state-funded school of South Carolina since 1842. And all the federal military colleges—West Point, the Naval Academy at Annapolis, and even the Air Force Academy, which was not established until 1954—admitted only males for most of their history. Their admission of women in 1976 (upon which the Court today relies, see ante, at 544-545, nn. 13, 15) came not by court decree, but because the people, through their elected representatives, decreed a change. See, e. g., § 803(a), 89 Stat. 537, note following 10 U. S. C. § 4342. In other words, the tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.

And the same applies, more broadly, to single-sex education in general, which, as I shall discuss, is threatened by *570 today's decision with the cutoff of all state and federal support. Government-run non military educational institutions for the two sexes have until very recently also been part of our national tradition. "[It is] [c]oeducation, historically, [that] is a novel educational theory. From grade school through high school, college, and graduate and professional training, much of the Nation's population during much of our history has been educated in sexually segregated classrooms." Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 736 (1982) (Powell, J.,dissenting); see id., at 736-739. These traditions may of course be changed by the democratic decisions of the people, as they largely have been.

Today, however, change is forced upon Virginia, and reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry, bygone days of "fixed notions" concerning women's education, see ante, at 536-537, and n. 10, 537-539, 542-544, the Court favors current notions so fixedly that it is willing to write them into the Constitution of the United States by application of custom-built "tests." This is not the interpretation of a Constitution, but the creation of one.

II

To reject the Court's disposition today, however, it is not necessary to accept my view that the Court's made-up tests cannot displace longstanding national traditions as the primary determinant of what the Constitution means. It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades. It is well settled, as Justice O'Connor stated some time ago for a unanimous Court, that we evaluate a statutory classification based on sex under a standard that lies "[b]etween th[e] extremes of rational basis review and strict scrutiny." Clark v. Jeter, 486 U. S., at 461. We have denominated this standard "intermediate scrutiny" and under it have inquired whether the statutory classification is "substantially *571 related to an important governmental objective." Ibid. See, e. g., Heckler v. Mathews, 465 U. S. 728, 744 (1984); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 150 (1980); Craig v. Boren, 429 U. S., at 197.

Before I proceed to apply this standard to VMI, I must comment upon the manner in which the Court avoids doing so. Notwithstanding our above-described precedents and their "`firmly established principles,' " Heckler, supra, at 744 (quoting Hogan, supra, at 723), the United States urged us to hold in this litigation "that strict scrutiny is the correct constitutional standard for evaluating classifications that deny opportunities to individuals based on their sex." Brief for United States in No. 94-2107, p. 16. (This was in flat contradiction of the Government's position below, which was, in its own words, to "stat[e] unequivocally that the appropriate standard in this case is `intermediate scrutiny.' " 2 Record, Doc. No. 88, p. 3 (emphasis added).) The Court, while making no reference to the Government's argument, effectively accepts it.

Although the Court in two places recites the test as stated in Hogan, see ante, at 524, 532-533, which asks whether the State has demonstrated "that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives," 458 U. S., at 724 (internal quotation marks omitted), the Court never answers the question presented in anything resembling that form. When it engages in analysis, the Court instead prefers the phrase "exceedingly persuasive justification" from Hogan. The Court's nine invocations of that phrase, see ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556, and even its fanciful description of that imponderable as "the core instruction" of the Court's decisions in J. E. B. v. Alabama ex rel. T. B., supra, and Hogan, supra, see ante, at 531, would be unobjectionable if the Court acknowledged that whether a "justification" is "exceedingly persuasive" must be assessed by asking *572 "[whether] the classification serves important governmental objectives and [whether] the discriminatory means employed are substantially related to the achievement of those objectives." Instead, however, the Court proceeds to interpret "exceedingly persuasive justification" in a fashion that contradicts the reasoning of Hogan and our other precedents.

That is essential to the Court's result, which can only be achieved by establishing that intermediate scrutiny is not survived if there are some women interested in attending VMI, capable of undertaking its activities, and able to meet its physical demands. Thus, the Court summarizes its holding as follows:

"In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realities: VMI's implementing methodology is not inherently unsuitable to women; some women do well under the adversative model; some women, at least, would want to attend VMI if they had the opportunity; some women are capable of all of the individual activities required of VMI cadets and can meet the physical standards VMI now imposes on men." Ante, at 550 (internal quotation marks, citations, and punctuation omitted; emphasis added).

Similarly, the Court states that "[t]he Commonwealth's justification for excluding all women from `citizen-soldier' training for which some are qualified . . . cannot rank as `exceedingly persuasive' . . . ." Ante, at 545.1

*573 Only the amorphous "exceedingly persuasive justification" phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI's single-sex composition is unconstitutional because there exist several women (or, one would have to conclude under the Court's reasoning, a single woman) willing and able to undertake VMI's program. Intermediate scrutiny has never required a least-restrictive-means analysis, but only a "substantial relation" between the classification and the state interests that it serves. Thus, in Califano v. Webster, 430 U. S. 313 (1977) (per curiam), we upheld a congressional statute that provided higher Social Security benefits for women than for men. We reasoned that "women . . . as such have been unfairly hindered from earning as much as men," but we did not require proof that each woman so benefited had suffered discrimination or that each disadvantaged man had not; it was sufficient that even under the former congressional scheme "women on the average received lower retirement benefits than men." Id., at 318, and n. 5 (emphasis added). The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation between end and means, not a perfect fit. In Rostker v. Goldberg, 453 U. S. 57 (1981), we held that selective-service registration could constitutionally exclude women, because even "assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans." Id., at 81. In Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 579, 582-583 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995), we held that a classification need not be accurate "in every case" to survive intermediate scrutiny so long as, "in the aggregate," it advances the underlying *574 objective. There issimply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.

Not content to execute a de facto abandonment of the intermediate scrutiny that has been our standard for sex-based classifications for some two decades, the Court purports to reserve the question whether, even in principle, a higher standard (i. e., strict scrutiny) should apply. "The Court has," it says, "thus far reserved most stringent judicial scrutiny for classifications based on race or national origin . . . ," ante, at 532, n. 6 (emphasis added); and it describes our earlier cases as having done no more than decline to "equat[e] gender classifications, for all purposes, to classifications based on race or national origin," ante, at 532 (emphasis added). The wonderful thing about these statements is that they are not actually false—just as it would not be actually false to say that "our cases have thus far reserved the `beyond a reasonable doubt' standard of proof for criminal cases," or that "we have not equated tort actions, for all purposes, to criminal prosecutions." But the statements are misleading, insofar as they suggest that we have not already categorically held strict scrutiny to be inapplicable to sex-based classifications. See, e. g., Heckler v. Mathews, 465 U. S. 728 (1984) (upholding state action after applying only intermediate scrutiny); Michael M. v. Superior Court, Somoma Cty., 450 U. S. 464 (1981) (plurality and both concurring opinions) (same); Califano v. Webster, supra (per curiam) (same). And the statements are irresponsible, insofar as they are calculated to destabilize current law. Our task is to clarify the law—not to muddy the waters, and not to exact overcompliance by intimidation. The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo.

The Court's intimations are particularly out of place because it is perfectly clear that, if the question of the applicable *575 standard of review for sex-based classifications were to be regarded as an appropriate subject for reconsideration, the stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review. The latter certainly has a firmer foundation in our past jurisprudence: Whereas no majority of the Court has ever applied strict scrutiny in a case involving sex-based classifications, we routinely applied rational-basis review until the 1970's, see, e. g., Hoyt v. Florida, 368 U. S. 57 (1961); Goesaert v. Cleary, 335 U. S. 464 (1948). And of course normal, rational-basis review of sex-based classifications would be much more in accord with the genesis of heightened standards of judicial review, the famous footnote in United States v. Carolene Products Co., 304 U. S. 144 (1938), which said (intimatingly) that we did not have to inquire in the case at hand

"whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." Id., at 152-153, n. 4.

It is hard to consider women a "discrete and insular minorit[y]" unable to employ the "political processes ordinarily to be relied upon," when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns. See, e. g., ante, at 536-537, 542-546 (and accompanying notes). Moreover, a long list of legislation proves the proposition false. See, e. g., Equal Pay Act of 1963, 29 U. S. C. § 206(d); Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2; Title IX of the Education Amendments of 1972, 20 U. S. C. § 1681; Women's Business Ownership Act of 1988, Pub. L. 100-533, 102 Stat. 2689; *576 Violence Against Women Act of 1994, Pub. L. 103-322, Title IV, 108 Stat. 1902.

III

With this explanation of how the Court has succeeded in making its analysis seem orthodox—and indeed, if intimations are to be believed, even overly generous to VMI—I now proceed to describe how the analysis should have been conducted. The question to be answered, I repeat, is whether the exclusion of women from VMI is "substantially related to an important governmental objective."

A

It is beyond question that Virginia has an important state interest in providing effective college education for its citizens. That single-sex instruction is an approach substantially related to that interest should be evident enough from the long and continuing history in this country of men's and women's colleges. But beyond that, as the Court of Appeals here stated: "That single-gender education at the college level is beneficial to both sexes is a fact established in this case. " 44 F. 3d 1229, 1238 (CA4 1995) (emphasis added).

The evidence establishing that fact was overwhelming— indeed, "virtually uncontradicted" in the words of the court that received the evidence, 766 F. Supp. 1407, 1415 (WD Va. 1991). As an initial matter, Virginia demonstrated at trial that "[a] substantial body of contemporary scholarship and research supports the proposition that, although males and females have significant areas of developmental overlap, they also have differing developmental needs that are deep-seated." Id., at 1434. While no one questioned that for many students a coeducational environment was nonetheless not inappropriate, that could not obscure the demonstrated benefits of single-sex colleges. For example, the District Court stated as follows:

"One empirical study in evidence, not questioned by any expert, demonstrates that single-sex colleges provide *577 better educational experiences than coeducational institutions. Students of both sexes become more academically involved, interact with faculty frequently, show larger increases in intellectual self-esteem and are more satisfied with practically all aspects of college experience (the sole exception is social life) compared with their counterparts in coeducational institutions. Attendance at an all-male college substantially increases the likelihood that a student will carry out career plans in law, business and college teaching, and also has a substantial positive effect on starting salaries in business. Women's colleges increase the chances that those who attend will obtain positions of leadership, complete the baccalaureate degree, and aspire to higher degrees." Id., at 1412.

See also id., at 1434-1435 (factual findings). "[I]n the light of this very substantial authority favoring single-sex education," the District Court concluded that "the VMI Board's decision to maintain an all-male institution is fully justified even without taking into consideration the other unique features of VMI's teaching and training." Id., at 1412. This finding alone, which even this Court cannot dispute, see ante, at 535, should be sufficient to demonstrate the constitutionality of VMI's all-male composition.

But besides its single-sex constitution, VMI is different from other colleges in another way. It employs a "distinctive educational method," sometimes referred to as the "adversative, or doubting, model of education." 766 F. Supp., at 1413, 1421. "Physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values are the salient attributes of the VMI educational experience." Id., at 1421. No one contends that this method is appropriate for all individuals; education is not a "one size fits all" business. Just as a State may wish to support junior colleges, vocational institutes, or a law school that emphasizes case *578 practice instead of classroom study, so too a State's decision to maintain within its system one school that provides the adversative method is "substantially related" to its goal of good education. Moreover, it was uncontested that "if the state were to establish a women's VMI-type [i. e., adversative] program, the program would attract an insufficient number of participants to make the program work," 44 F. 3d, at 1241; and it was found by the District Court that if Virginia were to include women in VMI, the school "would eventually find it necessary to drop the adversative system altogether," 766 F. Supp., at 1413. Thus, Virginia's options were an adversative method that excludes women or no adversative method at all.

There can be no serious dispute that, as the District Court found, single-sex education and a distinctive educational method "represent legitimate contributions to diversity in the Virginia higher education system." Ibid. As a theoretical matter, Virginia's educational interest would have been best served (insofar as the two factors we have mentioned are concerned) by six different types of public colleges—an all-men's, an all-women's, and a coeducational college run in the "adversative method," and an all-men's, an all-women's, and a coeducational college run in the "traditional method." But as a practical matter, of course, Virginia's financial resources, like any State's, are not limitless, and the Commonwealth must select among the available options. Virginia thus has decided to fund, in addition to some 14 coeducational 4-year colleges, one college that is run as an all-male school on the adversative model: the Virginia Military Institute.

Virginia did not make this determination regarding the make-up of its public college system on the unrealistic assumption that no other colleges exist. Substantial evidence in the District Court demonstrated that the Commonwealth has long proceeded on the principle that "`[h]igher education resources should be viewed as a whole—public and private' *579 "—because such an approach enhances diversity and because "`it is academic and economic waste to permit unwarranted duplication.' " Id., at 1420-1421 (quoting 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia). It is thus significant that, whereas there are "four all-female private [colleges] in Virginia," there is only "one private all-male college," which "indicates that the private sector is providing for th[e] [former] form of education to a much greater extent that it provides for all-male education." 766 F. Supp., at 1420-1421. In these circumstances, Virginia's election to fund one public all-male institution and one on the adversative model—and to concentrate its resources in a single entity that serves both these interests in diversity—is substantially related to the Commonwealth's important educational interests.

B

The Court today has no adequate response to this clear demonstration of the conclusion produced by application of intermediate scrutiny. Rather, it relies on a series of contentions that are irrelevant or erroneous as a matter of law, foreclosed by the record in this litigation, or both.

1. I have already pointed out the Court's most fundamental error, which is its reasoning that VMI's all-male composition is unconstitutional because "some women are capable of all of the individual activities required of VMI cadets," 766 F. Supp., at 1412, and would prefer military training on the adversative model. See supra, at 571-574. This unacknowledged adoption of what amounts to (at least) strict scrutiny is without antecedent in our sex-discrimination cases and by itself discredits the Court's decision.

2. The Court suggests that Virginia's claimed purpose in maintaining VMI as an all-male institution—its asserted interest in promoting diversity of educational options—is not "genuin[e]," but is a pretext for discriminating against women. Ante, at 539; see ante, at 535-540. To support this *580 charge, the Court would have to impute that base motive to VMI's Mission Study Committee, which conducted a 3-year study from 1983 to 1986 and recommended to VMI's Board of Visitors that the school remain all male. The committee, a majority of whose members consisted of non-VMI graduates, "read materials on education and on women in the military," "made site visits to single-sex and newly coeducational institutions" including West Point and the Naval Academy, and "considered the reasons that other institutions had changed from single-sex to coeducational status"; its work was praised as "thorough" in the accreditation review of VMI conducted by the Southern Association of Colleges and Schools. See 766 F. Supp., at 1413, 1428; see also id., at 1427-1430 (detailed findings of fact concerning the Mission Study Committee). The Court states that "[w]hatever internal purpose the Mission Study Committee served— and however well meaning the framers of the report—we can hardly extract from that effort any commonwealth policy evenhandedly to advance diverse educational options." Ante, at 539. But whether it is part of the evidence to prove that diversity was the Commonwealth's objective (its short report said nothing on that particular subject) is quite separate from whether it is part of the evidence to prove that antifeminism was not. The relevance of the Mission Study Committee is that its very creation, its sober 3-year study, and the analysis it produced utterly refute the claim that VMI has elected to maintain its all-male student-body composition for some misogynistic reason.

The Court also supports its analysis of Virginia's "actual state purposes" in maintaining VMI's student body as all male by stating that there is no explicit statement in the record "`in which the Commonwealth has expressed itself' " concerning those purposes. Ante, at 535, 539 (quoting 976 F. 2d 890, 899 (CA4 1992)); see also ante, at 525. That is wrong on numerous grounds. First and foremost, in its implication that such an explicit statement of "actual purposes" *581 is needed. The Court adopts, in effect, the argument of the United States that since the exclusion of women from VMI in 1839 was based on the "assumptions" of the time "that men alone were fit for military and leadership roles," and since "[b]efore this litigation was initiated, Virginia never sought to supply a valid, contemporary rationale for VMI's exclusionary policy," "[t]hat failure itself renders the VMI policy invalid." Brief for United States in No. 94-2107, at 10. This is an unheard-of doctrine. Each state decision to adopt or maintain a governmental policy need not be accompanied—in anticipation of litigation and on pain of being found to lack a relevant state interest—by a lawyer's contemporaneous recitation of the State's purposes. The Constitution is not some giant Administrative Procedure Act, which imposes upon the States the obligation to set forth a "statement of basis and purpose" for their sovereign Acts, see 5 U. S. C. § 553(c). The situation would be different if what the Court assumes to have been the 1839 policy had been enshrined and remained enshrined in legislation—a VMI charter, perhaps, pronouncing that the institution's purpose is to keep women in their place. But since the 1839 policy was no more explicitly recorded than the Court contends the present one is, the mere fact that today's Commonwealth continues to fund VMI "is enough to answer [the United States'] contention that the [classification] was the `accidental by-product of a traditional way of thinking about females.' " Michael M., 450 U. S., at 471, n. 6 (plurality opinion) (quoting Califano v. Webster, 430 U. S., at 320) (internal quotation marks omitted).

It is, moreover, not true that Virginia's contemporary reasons for maintaining VMI are not explicitly recorded. It is hard to imagine a more authoritative source on this subject than the 1990 Report of the Virginia Commission on the University of the 21st Century (1990 Report). As the parties stipulated, that report "notes that the hallmarks of Virginia's educational policy are `diversity and autonomy.' " Stipulations *582 of Fact 37, reprinted in Lodged Materials from the Record 64 (Lodged Materials). It said: "The formal system of higher education in Virginia includes a great array of institutions: state-supported and independent, two-year and senior, research and highly specialized, traditionally black and single-sex. " 1990 Report, quoted in relevant part at Lodged Materials 64-65 (emphasis added).2 The Court's only response to this is repeated reliance on the Court of Appeals' assertion that "`the only explicit [statement] that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions' " (namely, the statement in the 1990 Report that the Commonwealth's institutions must "deal with faculty, staff, and students without regard to sex") had nothing to do with the purpose of diversity. Ante, at 525, 539 (quoting 976 F. 2d, at 899). This proves, I suppose, that the Court of Appeals did not find a statement dealing with sex and diversity in the record; but the pertinent question (accepting the need for such a statement) is whether it was there. And the plain fact, which the Court does not deny, is that it was.

*583 The Court contends that "[a] purpose genuinely to advance an array of educational options . . . is not served" by VMI. Ante, at 539-540. It relies on the fact that all of Virginia's other public colleges have become coeducational. Ibid.; see also ante, at 521, n. 2. The apparent theory of this argument is that unless Virginia pursues a great deal of diversity, its pursuit of some diversity must be a sham. This fails to take account of the fact that Virginia's resources cannot support all possible permutations of schools, see supra, at 578, and of the fact that Virginia coordinates its public educational offerings with the offerings of in-state private educational institutions that the Commonwealth provides money for its residents to attend and otherwise assists—which include four women's colleges.3

Finally, the Court unreasonably suggests that there is some pretext in Virginia's reliance upon decentralized decisionmaking *584 to achieve diversity—its granting of substantial autonomy to each institution with regard to student-body composition and other matters, see 766 F. Supp., at 1419. The Court adopts the suggestion of the Court of Appeals that it is not possible for "one institution with autonomy, but with no authority over any other state institution, [to] give effect to a state policy of diversity among institutions." Ante, at 539 (internal quotation marks omitted). If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal, the game of soccer would not exist. And where the goal is diversity in a free market for services, that tends to be achieved even by autonomous actors who act out of entirely selfish interests and make no effort to cooperate. Each Virginia institution, that is to say, has a natural incentive to make itself distinctive in order to attract a particular segment of student applicants. And of course none of the institutions is entirely autonomous; if and when the legislature decides that a particular school is not well serving the interest of diversity—if it decides, for example, that a men's school is not much needed—funding will cease.4

*585 3. In addition to disparaging Virginia's claim that VMI's single-sex status serves a state interest in diversity, the Court finds fault with Virginia's failure to offer education based on the adversative training method to women. It dismisses the District Court's "`findings' on `gender-based developmental differences' " on the ground that "[t]hese `findings' restate the opinions of Virginia's expert witnesses, opinions about typically male or typically female `tendencies.' " Ante, at 541 (quoting 766 F. Supp., at 1434-1435). How remarkable to criticize the District Court on the ground that its findings rest on the evidence (i. e., the testimony of Virginia's witnesses)! That is what findings are supposed to do. It is indefensible to tell the Commonwealth that "[t]he burden of justification is demanding and it rests entirely on [you]," ante, at 533, and then to ignore the District Court's findings because they rest on the evidence put forward by the Commonwealth—particularly when, as the District Court said, "[t]he evidence in the case . . . is virtually uncontradicted, " 766 F. Supp., at 1415 (emphasis added).

Ultimately, in fact, the Court does not deny the evidence supporting these findings. See ante, at 541-546. It instead makes evident that the parties to this litigation could have saved themselves a great deal of time, trouble, and expense by omitting a trial. The Court simply dispenses with the evidence submitted at trial—it never says that a single finding of the District Court is clearly erroneous—in favor of the Justices' own view of the world, which the Court proceeds to support with (1) references to observations of someone *586 who is not a witness, nor even an educational expert, nor even a judge who reviewed the record or participated in the judgment below, but rather a judge who merely dissented from the Court of Appeals' decision not to rehear this litigation en banc, see ante, at 542, (2) citations of nonevidentiary materials such as amicus curiae briefs filed in this Court, see ante, at 544-545, nn. 13, 14, and (3) various historical anecdotes designed to demonstrate that Virginia's support for VMI as currently constituted reminds the Justices of the "bad old days," see ante, at 542-544.

It is not too much to say that this approach to the litigation has rendered the trial a sham. But treating the evidence as irrelevant is absolutely necessary for the Court to reach its conclusion. Not a single witness contested, for example, Virginia's "substantial body of `exceedingly persuasive' evidence . . . that some students, both male and female, benefit from attending a single-sex college" and "[that] [f]or those students, the opportunity to attend a single-sex college is a valuable one, likely to lead to better academic and professional achievement." 766 F. Supp., at 1411-1412. Even the United States' expert witness "called himself a `believer in single-sex education,' " although it was his "personal, philosophical preference," not one "born of educational-benefit considerations," "that single-sex education should be provided only by the private sector." Id., at 1412.

4. The Court contends that Virginia, and the District Court, erred, and "misperceived our precedent," by "train[ing] their argument on `means' rather than `end,' " ante, at 545. The Court focuses on "VMI's mission," which is to produce individuals "imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready . . . to defend their country in time of national peril." 766 F. Supp., at 1425 (quoting Mission Study Committee of the VMI Board of *587 Visitors, Report, May 16, 1986). "Surely," the Court says, "that goal is great enough to accommodate women." Ante, at 545.

This is lawmaking by indirection. What the Court describes as "VMI's mission" is no less the mission of all Virginia colleges. Which of them would the Old Dominion continue to fund if they did not aim to create individuals "imbued with love of learning, etc.," right down to being ready "to defend their country in time of national peril"? It can be summed up as "learning, leadership, and patriotism." To be sure, those general educational values are described in a particularly martial fashion in VMI's mission statement, in accordance with the military, adversative, and all-male character of the institution. But imparting those values in that fashion —i. e., in a military, adversative, all-male environment—is the distinctive mission of VMI. And as I have discussed (and both courts below found), that mission is not "great enough to accommodate women."

The Court's analysis at least has the benefit of producing foreseeable results. Applied generally, it means that whenever a State's ultimate objective is "great enough to accommodate women" (as it always will be), then the State will be held to have violated the Equal Protection Clause if it restricts to men even one means by which it pursues that objective—no matter how few women are interested in pursuing the objective by that means, no matter how much the single-sex program will have to be changed if both sexes are admitted, and no matter how beneficial that program has theretofore been to its participants.

5. The Court argues that VMI would not have to change very much if it were to admit women. See, e. g., ante, at 540-542. The principal response to that argument is that it is irrelevant: If VMI's single-sex status is substantially related to the government's important educational objectives, as I have demonstrated above and as the Court refuses to discuss, *588 that concludes the inquiry. There should be no debate in the federal judiciary over "how much" VMI would be required to change if it admitted women and whether that would constitute "too much" change.

But if such a debate were relevant, the Court would certainly be on the losing side. The District Court found as follows: "[T]he evidence establishes that key elements of the adversative VMI educational system, with its focus on barracks life, would be fundamentally altered, and the distinctive ends of the system would be thwarted, if VMI were forced to admit females and to make changes necessary to accommodate their needs and interests." 766 F. Supp., at 1411. Changes that the District Court's detailed analysis found would be required include new allowances for personal privacy in the barracks, such as locked doors and coverings on windows, which would detract from VMI's approach of regulating minute details of student behavior, "contradict the principle that everyone is constantly subject to scrutiny by everyone else," and impair VMI's "total egalitarian approach" under which every student must be "treated alike"; changes in the physical training program, which would reduce "[t]he intensity and aggressiveness of the current program"; and various modifications in other respects of the adversative training program that permeates student life. See id., at 1412-1413, 1435-1443. As the Court of Appeals summarized it, "the record supports the district court's findings that at least these three aspects of VMI's program— physical training, the absence of privacy, and the adversative approach—would be materially affected by coeducation, leading to a substantial change in the egalitarian ethos that is a critical aspect of VMI's training." 976 F. 2d, at 896-897.

In the face of these findings by two courts below, amply supported by the evidence, and resulting in the conclusion that VMI would be fundamentally altered if it admitted women, this Court simply pronounces that "[t]he notion that *589 admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved." Ante, at 542 (footnote omitted). The point about "downgrad[ing] VMI's stature" is a straw man; no one has made any such claim. The point about "destroy[ing] the adversative system" is simply false; the District Court not only stated that "[e]vidence supports this theory," but specifically concluded that while "[w]ithout a doubt" VMI could assimilate women, "it is equally without a doubt that VMI's present methods of training and education would have to be changed" by a "move away from its adversative new cadet system." 766 F. Supp., at 1413, and n. 8, 1440. And the point about "destroy[ing] the school," depending upon what that ambiguous phrase is intended to mean, is either false or else sets a standard much higher than VMI had to meet. It sufficed to establish, as the District Court stated, that VMI would be "significantly different" upon the admission of women, 766 F. Supp., at 1412, and "would eventually find it necessary to drop the adversative system altogether," id., at 1413.5

*590 6. Finally, the absence of a precise "all-women's analogue" to VMI is irrelevant. In Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982), we attached no constitutional significance to the absence of an all-male nursing school. As Virginia notes, if a program restricted to one sex is necessarily unconstitutional unless there is a parallel program restricted to the other sex, "the opinion in Hogan could have ended with its first footnote, which observed that `Mississippi maintains no other single-sex public university or college.' " Brief for Cross-Petitioners in No. 94-2107, p. 38 (quoting Mississippi Univ. for Women v. Hogan, supra, at 720, n. 1).

Although there is no precise female-only analogue to VMI, Virginia has created during this litigation the Virginia Women's Institute for Leadership (VWIL), a state-funded all-women's program run by Mary Baldwin College. I have thus far said nothing about VWIL because it is, under our established test, irrelevant, so long as VMI `s all-male character is "substantially related" to an important state goal. But VWIL now exists, and the Court's treatment of it shows how far reaching today's decision is.

VWIL was carefully designed by professional educators who have long experience in educating young women. The program rejects the proposition that there is a "difference in the respective spheres and destinies of man and woman," Bradwell v. State, 16 Wall. 130, 141 (1873), and is designed to "provide an all-female program that will achieve substantially similar outcomes [to VMI's] in an all-female environment," 852 F. Supp. 471, 481 (WD Va. 1994). After holding a trial where voluminous evidence was submitted and making detailed findings of fact, the District Court concluded that "there is a legitimate pedagogical basis for the different means employed [by VMI and VWIL] to achieve the substantially *591 similar ends." Ibid. The Court of Appeals undertook a detailed review of the record and affirmed. 44 F. 3d 1229 (CA4 1995).6 But it is Mary Baldwin College, which runs VWIL, that has made the point most succinctly:

"It would have been possible to develop the VWIL program to more closely resemble VMI, with adversative techniques associated with the rat line and barracks-like living quarters. Simply replicating an existing program would have required far less thought, research, and educational expertise. But such a facile approach would have produced a paper program with no real prospect of successful implementation." Brief for Mary Baldwin College as Amicus Curiae 5.

It is worth noting that none of the United States' own experts in the remedial phase of this litigation was willing to testify that VMI's adversative method was an appropriate methodology for educating women. This Court, however, does not care. Even though VWIL was carefully designed by professional educators who have tremendous experience in the area, and survived the test of adversarial litigation, the Court simply declares, with no basis in the evidence, that *592 these professionals acted on "`overbroad' generalizations," ante, at 542, 550.

C

A few words are appropriate in response to the concurrence, which finds VMI unconstitutional on a basis that is more moderate than the Court's but only at the expense of being even more implausible. The concurrence offers three reasons: First, that there is "scant evidence in the record," ante, at 562, that diversity of educational offering was the real reason for Virginia's maintaining VMI. "Scant" has the advantage of being an imprecise term. I have cited the clearest statements of diversity as a goal for higher education in the 1990 Report, the 1989 Virginia Plan for Higher Education, the Budget Initiatives prepared in 1989 by the State Council of Higher Education for Virginia, the 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia, and the 1969 Report of the Virginia Commission on Constitutional Revision. See supra, at 579, 581-582, and n. 2, 583, n. 3. There is no evidence to the contrary, once one rejects (as the concurrence rightly does) the relevance of VMI's founding in days when attitudes toward the education of women were different. Is this conceivably not enough to foreclose rejecting as clearly erroneous the District Court's determination regarding "the Commonwealth's objective of educational diversity"? 766 F. Supp., at 1413. Especially since it is absurd on its face even to demand "evidence" to prove that the Commonwealth's reason for maintaining a men's military academy is that a men's military academy provides a distinctive type of educational experience (i. e., fosters diversity). What other purpose would the Commonwealth have? One may argue, as the Court does, that this type of diversity is designed only to indulge hostility toward women—but that is a separate point, explicitly rejected by the concurrence, and amply refuted by the evidence I have mentioned in discussing *593 the Court's opinion.7 What is now under discussion—the concurrence's making central to the disposition of this litigation the supposedly "scant" evidence that Virginia maintained VMI in order to offer a diverse educational experience—is rather like making crucial to the lawfulness of the United States Army record "evidence" that its purpose is to do battle. A legal culture that has forgotten the concept of res ipsa loquitur deserves the fate that it today decrees for VMI.

Second, the concurrence dismisses out of hand what it calls Virginia's "second justification for the single-sex admissions policy: maintenance of the adversative method." Ante, at 564. The concurrence reasons that "this justification does not serve an important governmental objective" because, whatever the record may show about the pedagogical benefits of single-sex education, "there is no similar evidence in the record that an adversative method is pedagogically beneficial or is any more likely to produce character traits than other methodologies." Ibid. That is simply wrong. See, e. g., 766 F. Supp., at 1426 (factual findings concerning character traits produced by VMI's adversative methodology); id. , at 1434 (factual findings concerning benefits for many college-age men of an adversative approach in general). In reality, the pedagogical benefits of VMI's adversative approach were not only proved, but were a given in this litigation. The reason the woman applicant who prompted this suit wanted to enter VMI was assuredly not that she wanted to go to an all-male school; it would cease being all-male as *594 soon as she entered. She wanted the distinctive adversative education that VMI provided, and the battle was joined (in the main) over whether VMI had a basis for excluding women from that approach. The Court's opinion recognizes this, and devotes much of its opinion to demonstrating that "`some women . . . do well under [the] adversative model' " and that "[i]t is on behalf of these women that the United States has instituted this suit." Ante, at 550 (quoting 766 F. Supp., at 1434). Of course, in the last analysis it does not matter whether there are any benefits to the adversative method. The concurrence does not contest that there are benefits to single-sex education, and that alone suffices to make Virginia's case, since admission of a woman will even more surely put an end to VMI's single-sex education than it will to VMI's adversative methodology.

A third reason the concurrence offers in support of the judgment is that the Commonwealth and VMI were not quick enough to react to the "further developments" in this Court's evolving jurisprudence. Ante, at 561. Specifically, the concurrence believes it should have been clear after Hogan that "[t]he difficulty with [Virginia's] position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women." Ante, at 562. If only, the concurrence asserts, Virginia had "made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation." Ante, at 563. That is to say, the concurrence believes that after our decision in Hogan (which held a program of the Mississippi University for Women to be unconstitutional—without any reliance on the fact that there was no corresponding Mississippi all-men's program), the Commonwealth should have known that what this Court expected of it was . . . yes!, the creation of a state all-women's program. Any lawyer who gave that advice to the Commonwealth *595 ought to have been either disbarred or committed. (The proof of that pudding is today's 6-Justice majority opinion.) And any Virginia politician who proposed such a step when there were already four 4-year women's colleges in Virginia (assisted by state support that may well exceed, in the aggregate, what VMI costs, see n. 3, supra ) ought to have been recalled.

In any event, "diversity in the form of single-sex, as well as coeducational, institutions of higher learning" is "available to women as well as to men" in Virginia. Ante, at 564. The concurrence is able to assert the contrary only by disregarding the four all-women's private colleges in Virginia (generously assisted by public funds) and the Commonwealth's longstanding policy of coordinating public with private educational offerings, see supra, at 579, 581-582, and n. 2, 583-584, and n. 3. According to the concurrence, the

2, Virginia's reason assistance to its four all-women's private colleges does not count is that "[t]he private women's colleges are treated by the State exactly as all other private schools are treated." Ante, at 564. But if Virginia cannot get credit for assisting women's education if it only treats women's private schools as it does all other private schools, then why should it get blame for assisting men's education if it only treats VMI as it does all other public schools? This is a great puzzlement.

IV

As is frequently true, the Court's decision today will have consequences that extend far beyond the parties to the litigation. What I take to be the Court's unease with these consequences, and its resulting unwillingness to acknowledge them, cannot alter the reality.

A

Under the constitutional principles announced and applied today, single-sex public education is unconstitutional. By going through the motions of applying a balancing test—asking *596 whether the State has adduced an "exceedingly persuasive justification" for its sex-based classification—the Court creates the illusion that government officials in some future case will have a clear shot at justifying some sort of singlesex public education. Indeed, the Court seeks to create even a greater illusion than that: It purports to have said nothing of relevance to other public schools at all. "We address specifically and only an educational opportunity recognized . . . as `unique.' " Ante, at 534, n. 7.

The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent —that is, to set forth principles of law that every court in America must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 66-67 (1996) (emphasis added). That is the principal reason we publish our opinions.

And the rationale of today's decision is sweeping: for sex-based classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. See supra, at 571-574. Indeed, the Court indicates that if any program restricted to one sex is "uniqu[e]," it must be opened to members of the opposite sex "who have the will and capacity" to participate in it. Ante, at 542. I suggest that the single-sex program that will not be capable of being characterized as "unique" is not only unique but nonexistent.8

In any event, regardless of whether the Court's rationale leaves some small amount of room for lawyers to argue, it ensures that single-sex public education is functionally dead. *597 The costs of litigating the constitutionality of a single-sex education program, and the risks of ultimately losing that litigation, are simply too high to be embraced by public officials. Any person with standing to challenge any sex-based classification can haul the State into federal court and compel it to establish by evidence (presumably in the form of expert testimony) that there is an "exceedingly persuasive justification" for the classification. Should the courts happen to interpret that vacuous phrase as establishing a standard that is not utterly impossible of achievement, there is considerable risk that whether the standard has been met will not be determined on the basis of the record evidence—indeed, that will necessarily be the approach of any court that seeks to walk the path the Court has trod today. No state official in his right mind will buy such a high-cost, high-risk lawsuit by commencing a single-sex program. The enemies of single-sex education have won; by persuading only seven Justices (five would have been enough) that their view of the world is enshrined in the Constitution, they have effectively imposed that view on all 50 States.

This is especially regrettable because, as the District Court here determined, educational experts in recent years have increasingly come to "suppor[t] [the] view that substantial educational benefits flow from a single-gender environment, be it male or female, that cannot be replicated in a coeducational setting. " 766 F. Supp., at 1415 (emphasis added). "The evidence in th[is] case," for example, "is virtually uncontradicted" to that effect. Ibid. Until quite recently, some public officials have attempted to institute new single-sex programs, at least as experiments. In 1991, for example, the Detroit Board of Education announced a program to establish three boys-only schools for inner-city youth; it was met with a lawsuit, a preliminary injunction was swiftly entered by a District Court that purported to rely on Hogan, see Garrett v. Board of Ed. of School Dist. of Detroit, 775 F. Supp. 1004, 1006 (ED Mich. 1991), and the *598 Detroit Board of Education voted to abandon the litigation and thus abandon the plan, see Detroit Plan to Aid Blacks with All-Boy Schools Abandoned, Los Angeles Times, Nov. 8, 1991, p. A4, col. 1. Today's opinion assures that no such experiment will be tried again.

B

There are few extant single-sex public educational programs. The potential of today's decision for widespread disruption of existing institutions lies in its application to private single-sex education. Government support is immensely important to private educational institutions. Mary Baldwin College—which designed and runs VWIL— notes that private institutions of higher education in the 1990-1991 school year derived approximately 19 percent of their budgets from federal, state, and local government funds, not including financial aid to students. See Brief for Mary Baldwin College as Amicus Curiae 22, n. 13 (citing U. S. Dept. of Education, National Center for Education Statistics, Digest of Education Statistics, p. 38 and Note (1993)). Charitable status under the tax laws is also highly significant for private educational institutions, and it is certainly not beyond the Court that rendered today's decision to hold that a donation to a single-sex college should be deemed contrary to public policy and therefore not deductible if the college discriminates on the basis of sex. See Note, The Independent Sector and the Tax Laws: Defining Charity in an Ideal Democracy, 64 S. Cal. L. Rev. 461, 476 (1991). See also Bob Jones Univ. v. United States, 461 U. S. 574 (1983).

The Court adverts to private single-sex education only briefly, and only to make the assertion (mentioned above) that "[w]e address specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as `unique.' " Ante, at 534, n. 7. As I have already remarked, see supra, at 596, that assurance assures nothing, unless it is to be taken as a promise that in the future *599 the Court will disclaim the reasoning it has used today to destroy VMI. The Government, in its briefs to this Court, at least purports to address the consequences of its attack on VMI for public support of private single-sex education. It contends that private colleges that are the direct or indirect beneficiaries of government funding are not thereby necessarily converted into state actors to which the Equal Protection Clause is then applicable. See Brief for United States in No. 94-2107, at 35-37 (discussing Rendell-Baker v. Kohn, 457 U. S. 830 (1982), and Blum v. Yaretsky, 457 U. S. 991 (1982)). That is true. It is also virtually meaningless.

The issue will be not whether government assistance turns private colleges into state actors, but whether the government itself would be violating the Constitution by providing state support to single-sex colleges. For example, in Norwood v. Harrison, 413 U. S. 455 (1973), we saw no room to distinguish between state operation of racially segregated schools and state support of privately run segregated schools. "Racial discrimination in state-operated schools is barred by the Constitution and `[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.' " Id., at 465 (quoting Lee v. Macon County Bd. of Ed., 267 F. Supp. 458, 475-476 (MD Ala. 1967)); see also Cooper v. Aaron, 358 U. S. 1, 19 (1958) ("State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws"); Grove City College v. Bell, 465 U. S. 555, 565 (1984) (case arising under Title IX of the Education Amendments of 1972 and stating that "[t]he economic effect of direct and indirect assistance often is indistinguishable"). When the Government was pressed at oral argument concerning the implications of these cases for private single-sex education if government-provided single-sex education is unconstitutional, *600 it stated that the implications will not be so disastrous, since States can provide funding to racially segregated private schools, "depend[ing] on the circumstances," Tr. of Oral Arg. 56. I cannot imagine what those "circumstances" might be, and it would be as foolish for private-school administrators to think that that assurance from the Justice Department will outlive the day it was made, as it was for VMI to think that the Justice Department's "unequivoca[l]" support for an intermediate-scrutiny standard in this litigation would survive the Government's loss in the courts below.

The only hope for state-assisted single-sex private schools is that the Court will not apply in the future the principles of law it has applied today. That is a substantial hope, I am happy and ashamed to say. After all, did not the Court today abandon the principles of law it has applied in our earlier sex-classification cases? And does not the Court positively invite private colleges to rely upon our ad-hocery by assuring them this litigation is "unique"? I would not advise the foundation of any new single-sex college (especially an all-male one) with the expectation of being allowed to receive any government support; but it is too soon to abandon in despair those single-sex colleges already in existence. It will certainly be possible for this Court to write a future opinion that ignores the broad principles of law set forth today, and that characterizes as utterly dispositive the opinion's perceptions that VMI was a uniquely prestigious allmale institution, conceived in chauvinism, etc., etc. I will not join that opinion.

* * *

Justice Brandeis said it is "one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262, 311 *601 (1932) (dissenting opinion). But it is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a "`more perfect Union,' " ante, at 558 (a criterion only slightly more restrictive than a "more perfect world"), can impose its own favored social and economic dispositions nationwide. As today's disposition, and others this single Term, show, this places it beyond the power of a "single courageous State," not only to introduce novel dispositions that the Court frowns upon, but to reintroduce, or indeed even adhere to, disfavored dispositions that are centuries old. See, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996); Romer v. Evans, 517 U. S. 620 (1996). The sphere of self-government reserved to the people of the Republic is progressively narrowed.

In the course of this dissent, I have referred approvingly to the opinion of my former colleague, Justice Powell, in Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982). Many of the points made in his dissent apply with equal force here—in particular, the criticism of judicial opinions that purport to be "narro[w]" but whose "logic" is "sweepin[g]." Id., at 745-746, n. 18. But there is one statement with which I cannot agree. Justice Powell observed that the Court's decision in Hogan, which struck down a single-sex program offered by the Mississippi University for Women, had thereby "[l]eft without honor . . . an element of diversity that has characterized much of American education and enriched much of American life." Id., at 735. Today's decision does not leave VMI without honor; no court opinion can do that.

In an odd sort of way, it is precisely VMI's attachment to such old-fashioned concepts as manly "honor" that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education. The record contains a booklet that all first-year VMI students *602 (the so-called "rats") were required to keep in their possession at all times. Near the end there appears the following period piece, entitled "The Code of a Gentleman":

"Without a strict observance of the fundamental Code of Honor, no man, no matter how `polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice . . . or he is not a Gentleman.

"A Gentleman . . .

"Does not discuss his family affairs in public or with acquaintances.

"Does not speak more than casually about his girl friend.

"Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol.

"Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public.

"Does not hail a lady from a club window.

"A gentleman never discusses the merits or demerits of a lady.

"Does not mention names exactly as he avoids the mention of what things cost.

"Does not borrow money from a friend, except in dire need. Money borrowed is a debt of honor, and must be repaid as promptly as possible. Debts incurred by a deceased parent, brother, sister or grown child are assumed by honorable men as a debt of honor.

"Does not display his wealth, money or possessions.

"Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be.

*603 "Does not slap strangers on the back nor so much as lay a finger on a lady.

"Does not `lick the boots of those above' nor `kick the face of those below him on the social ladder.'

"Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him.

"A Gentleman respects the reserves of others, but demands that others respect those which are his.

"A Gentleman can become what he wills to be. . . ."

I do not know whether the men of VMI lived by this code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

1

Accord, ante, at 541 ("In sum . . . , neither the goal of producing citizen soldiers, VMI's raison d'être, nor VMI's implementing methodology is inherently unsuitable to women" (internal quotation marks omitted; emphasis added)); ante, at 542 ("[T]he question is whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords"); ante, at 547-548 (the "violation" is that "equal protection [has been] denied to women ready, willing, and able to benefit from educational opportunities of the kind VMI offers");ante, at 550 ("As earlier stated, see supra, at 541-542, generalizations about `the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description").

2

This statement is supported by other evidence in the record demonstrating, by reference to both public and private institutions, that Virginia actively seeks to foster its "`rich heritage of pluralism and diversity in higher education,' " 1969 Report of the Virginia Commission on Constitutional Revision, quoted in relevant part at Lodged Materials 53; that Virginia views "`[o]ne special characteristic of the Virginia system [as being] its diversity,' " 1989 Virginia Plan for Higher Education, quoted in relevant part at Lodged Materials 64; and that in the Commonwealth's view "[h]igher education resources should be viewed as a whole—public and private"—because "`Virginia needs the diversity inherent in a dual system of higher education,' " 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia, quoted in 766 F. Supp. 1407, 1420 (WD Va. 1991). See also Budget Initiatives for 1990-1992 of State Council of Higher Education for Virginia 10 (June 21, 1989) (Budget Initiatives),quoted at n. 3,infra. It should be noted (for this point will be crucial to my later discussion) that these official reports quoted here, in text and footnote, regard the Commonwealth's educational system—public and private —as a unitary one.

3

The Commonwealth provides tuition assistance, scholarship grants, guaranteed loans, and work-study funds for residents of Virginia who attend private colleges in the Commonwealth. See, e. g., Va. Code Ann. §§ 23-38.11 to 23-38.19 (1993 and Supp. 1995) (Tuition Assistance Grant Act); §§ 23-38.30 to 23-38.44:3 (Virginia Student Assistance Authorities); Va. Code Ann. §§ 23-38.45 to 23-38.53 (1993) (College Scholarship Assistance Act); §§ 23-38.53:1 to 23-38.53:3 (Virginia Scholars Program); §§ 23-38.70, 23-38.71 (Virginia Work-Study Program). These programs involve substantial expenditures: for example, Virginia appropriated $4,413,750 (not counting federal funds it also earmarked) for the College Scholarship Assistance Program for both 1996 and 1997, and for the Tuition Assistance Grant Program appropriated $21,568,000 for 1996 and $25,842,000 for 1997. See 1996 Va. Appropriations Act, ch. 912, pt. 1, § 160.

In addition, as the parties stipulated in the District Court, the Commonwealth provides other financial support and assistance to private institutions—including single-sex colleges—through low-cost building loans, state-funded services contracts, and other programs. See, e. g., Va. Code Ann. §§ 23-30.39 to 23.30.58 (1993) (Educational Facilities Authority Act). The State Council of Higher Education for Virginia, in a 1989 document not created for purposes of this litigation but introduced into evidence, has described these various programs as a "means by which the Commonwealth can provide funding to its independent institutions, thereby helping to maintain a diverse system of higher education." Budget Initiatives 10.

4

The Court, unfamiliar with the Commonwealth's policy of diverse and independent institutions, and in any event careless of state and local traditions, must be forgiven by Virginians for quoting a reference to "`the Charlottesville campus' " of the University of Virginia. See ante, at 538. The University of Virginia, an institution even older than VMI, though not as old as another of the Commonwealth's universities, the College of William and Mary, occupies the portion of Charlottesville known, not as the "campus," but as "the grounds." More importantly, even if it were a "campus," there would be no need to specify "the Charlottesville campus," as one might refer to the Bloomington or Indianapolis campus of Indiana University. Unlike university systems with which the Court is perhaps more familiar, such as those in New York (e. g., the State University of New York at Binghamton or Buffalo), Illinois (University of Illinois at Urbana-Champaign or at Chicago), and California (University of California, Los Angeles, or University of California, Berkeley), there is only one University of Virginia. It happens (because Thomas Jefferson lived near there) to be located at Charlottesville. To many Virginians it is known, simply, as "the University," which suffices to distinguish it from the Commonwealth's other institutions offering 4-year college instruction, which include Christopher Newport College, Clinch Valley College, the College of William and Mary, George Mason University, James Madison University, Longwood College, Mary Washington University, Norfolk State University,Old Dominion University, Radford University, Virginia Commonwealth University, Virginia Polytechnic Institute and State University, Virginia State University—and, of course, VMI.

5

The Court's do-it-yourself approach to factfinding, which throughout is contrary to our well-settled rule that we will not "undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error," Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949) (and cases cited), is exemplified by its invocation of the experience of the federal military academies to prove that not much change would occur. See ante, at 542, n. 11; 544-545, and n. 15; 550-551, n. 19. In fact, the District Court noted that "the West Point experience" supported the theory that a coeducational VMI would have to "adopt a [different] system," for West Point found it necessary upon becoming coeducational to "move away" from its adversative system. 766 F. Supp., at 1413, 1440. "Without a doubt . . . VMI's present methods of training and education would have to be changed as West Point's were." Id., at 1413, n. 8; accord, 976 F. 2d 890, 896-897 (CA4 1992) (upholding District Court's findings that "the unique characteristics of VMI's program," including its "unique methodology," "would be destroyed by coeducation").

6

The Court is incorrect in suggesting that the Court of Appeals applied a "deferential" "brand of review inconsistent with the more exacting standard our precedent requires." Ante, at 555. That court "inquir[ed] (1) whether the state's objective is legitimate and important,' and (2) whether `the requisite direct, substantial relationship between objective and means is present,' " 44 F. 3d, at 1235 (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 725 (1982)). To be sure, such review is "deferential" to a degree that the Court's new standard is not, for it is intermediate scrutiny. (The Court cannot evade this point or prove the Court of Appeals too deferential by stating that that court "devised another test, a `substantive comparability' inquiry,' " ante, at 555 (quoting 44 F. 3d, at 1237), for as that court explained, its "substantive comparability" inquiry was an "additional step" that it engrafted on "th[e] traditional test" of intermediate scrutiny, ibid. (emphasis added).)

7

The concurrence states that it "read[s] the Court" not "as saying that the diversity rationale is a pretext" for discriminating against women, but as saying merely that the diversity rationale is not genuine. Ante, at 562, n. The Court itself makes no such disclaimer, which would be difficult to credit inasmuch as the foundation for its conclusion that the diversity rationale is not "genuin[e]," ante, at 539, is its antecedent discussion of Virginia's "deliberate" actions over the past century and a half, based on "[f]amiliar arguments," that sought to enforce once "widely held views about women's proper place," ante, at 537, 538.

8

In this regard, I note that the Court—which I concede is under no obligation to do so—provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.

City of Boerne v. P. F. Flores, Archbishop of San Antonio, et al.

Argued February 19, 1997.

Decided June 25, 1997.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

*509 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Thomas, and Ginsburg, JJ., joined, and in which Scalia, J., joined as to all but Part III—A-1. Stevens, J., filed a concurring opinion, post, p. 536. Scalia, J., filed an opinion concurring in part, in which Stevens, J., joined, post, p. 537. O'Connor, J., filed a dissenting opinion, in which Breyer, J., joined except as to the first paragraph of Part I, post, p. 544. Souter, J., post, p. 565, and Breyer, J., post,p. 566, filed dissenting opinions.

Marci A. Hamilton argued the cause for petitioner. With her on the briefs were Lowell F. Denton and Gordon L. Hollon.

Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae urging reversal. With him on the brief were Betty D. Montgomery, Attorney *510 General of Ohio, Robert C. Maier and Todd Marti,Assistant Attorneys General, and the Attorneys General for their respective jurisdictions as follows: Malaetasi M. Togafau of American Samoa, Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Calvin Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Mike Moore of Mississippi, Frankie Sue Del Papaof Nevada, Jeffrey R. Howard of New Hampshire, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, and Julio A. Brady of the Virgin Islands.

Douglas Laycock argued the cause for respondent Flores. With him on the brief were Thomas Drought and Patricia J. Schofield. Acting Solicitor General Dellinger argued the cause for the United States. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Patricia A. Millett, and Michael Jay Singer.*

*

 Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia by James S. Gilmore II, Attorney General, David E. Anderson, Chief Deputy Attorney General, William Henry Hurd,Deputy Attorney General, and Lee E. Goodman; for the Clarendon Foundation by Ronald D. Maines and Jay S. Bybee; for the National Right to Work Legal Defense Foundation, Inc., by Bruce N. Cameron; and for the San Antonio Conservation Society et al. by Robert A. Long, Jr., and Ivan K. Fong.

Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Jack Schwartz and Steven M. Sullivan, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Scott Harshbarger of Massachusetts, and Dennis C. Vacco of New York; for members of the Virginia House of Delegates et al. by Mitchell A. Karlan; for Senator Orrin G. Hatch et al. by Carter G. Phillips and Gene C. Schaerr; for Senator Edward M. Kennedy et al. by Clifford M. Sloan; for the American Bar Association by N. Lee Cooper, Stuart H. Newberger, and Joseph N. Onek; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier,and John G. Stepanovich; for the Beckett Fund for Religious Liberty by Kevin J. Hasson; for the Church of Jesus Christ of Latter-day Saints by W. Cole Durham, Jr., James A. Serritella, James C. Geoly, Kevin R. Gustafson, and Von G. Keetch; for the Coalition for the Free Exercise of Religion by Marc D. Stern, Oliver S. Thomas, J. Brent Walker, Melissa Rogers, Steven T. McFarland, Samuel Rabinove, Richard Foltin, David Zwiebel, Steven R. Shapiro, Steven K. Green, and Jack F. Trope; for the Defenders of Property Rights et al. by Nancie G. Marzulla; for the Minnesota Family Council et al.by Jordan W. Lorence; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, and Norman J. Chachkin; for the National Committee for Amish Religious Freedom by William Bentley Ball and Richard E. Connell; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Mathew S. Nosanchuk, and Dennis Rapps; for the National Trust for Historic Preservation in the United States by John H. Beisner and Elizabeth S. Merritt; for the Prison Fellowship Ministries et al. by Michael Joseph Woodruff, Scott J. Ward, J. Matthew Szymanski, Stephen M. Clarke,and Isaac M. Jaroslawicz; and for the United States Catholic Conference et al. by Michael W. McConnell, Mark E. Chopko, and Jeffrey Hunter Moon.

Briefs of amici curiae were filed for the State of Texas by Dan Morales, Attorney General, Jorge Vega,First Assistant Attorney General, and Samuel W. Goodhope and Javier Aguilar, Special Assistant Attorneys General; for the Center for the Community Interest by Gilbert R. Serota; for Children's Healthcare is a Legal Duty, Inc., et al. by Robert J. Bruno; for the Knights of Columbus by Thomas D. Yannucci and Carl A. Anderson; for the Rutherford Institute by John W. Whitehead, James A. Hayes, Jr., and Brian L. Day; and by Thurston Greene, pro se.

*511 Justice Kennedy delivered the opinion of the Court.†

A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA or Act), 107 Stat. 1488, 42 U. S. C. § 2000bb et seq. The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress' power.

I

Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church's structure replicates the mission *512 style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.

A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district.

Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. 877 F. Supp. 355 (1995).

The complaint contained various claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The Archbishop relied upon RFRA as one basis for relief from the refusal to issue the permit. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under § 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. 73 F. 3d 1352 (1996). We granted certiorari, 519 U. S. 926 (1996), and now reverse.

II

Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). There we considered a Free Exercise Clause claim brought by members of the *513 Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Their practice was to ingest peyote for sacramental purposes, and they challenged an Oregon statute of general applicability which made use of the drug criminal. In evaluating the claim, we declined to apply the balancing test set forth in Sherbert v. Verner, 374 U. S. 398 (1963), under which we would have asked whether Oregon's prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest. We stated:

"[G]overnment's ability to enforce generally applicable prohibitions of socially harmful conduct . . . cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is `compelling'. . . contradicts both constitutional tradition and common sense." 494 U. S., at 885 (internal quotation marks and citations omitted).

The application of the Sherbert test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability. The anomaly would have been accentuated, the Court reasoned, by the difficulty of determining whether a particular practice was central to an individual's religion. We explained, moreover, that it "is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." 494 U. S., at 887(internal quotation marks and citation omitted).

The only instances where a neutral, generally applicable law had failed to pass constitutional muster, the Smith Court *514 noted, were cases in which other constitutional protections were at stake. Id. , at 881-882. In Wisconsin v. Yoder,406 U. S. 205 (1972), for example, we invalidated Wisconsin's mandatory school-attendance law as applied to Amish parents who refused on religious grounds to send their children to school. That case implicated not only the right to the free exercise of religion but also the right of parents to control their children's education.

The Smith decision acknowledged the Court had employed the Sherbert test in considering free exercise challenges to state unemployment compensation rules on three occasions where the balance had tipped in favor of the individual. See Sherbert, supra; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987). Those cases, the Court explained, stand for "the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason." 494 U. S., at 884 (internal quotation marks omitted). By contrast, where a general prohibition, such as Oregon's, is at issue, "the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to [free exercise] challenges." Id., at 885. Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.

Four Members of the Court disagreed. They argued the law placed a substantial burden on the Native American Church members so that it could be upheld only if the law served a compelling state interest and was narrowly tailored to achieve that end. Id., at 894. Justice O'Connor concluded Oregon had satisfied the test, while Justice Blackmun, joined by Justice Brennan and Justice Marshall, could see no compelling interest justifying the law's application to the members.

*515 These points of constitutional interpretation were debated by Members of Congress in hearings and floor debates. Many criticized the Court's reasoning, and this disagreement resulted in the passage of RFRA. Congress announced:

"(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

"(2) laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

"(3) governments should not substantially burden religious exercise without compelling justification;

"(4) in Employment Division v. Smith, 494 U. S. 872 (1990), the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

"(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." 42 U. S. C. § 2000bb(a).

The Act's stated purposes are:

"(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

"(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government." § 2000bb(b).

RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of *516 a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." § 2000bb—1. The Act's mandate applies to any "branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States," as well as to any "State, or . . . subdivision of a State." § 2000bb—2(1). The Act's universal coverage is confirmed in § 2000bb—3(a), under which RFRA "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." In accordance with RFRA's usage of the term, we shall use "state law" to include local and municipal ordinances.

III

A

Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803).

Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA's provisions, those which impose its requirements on the States. See Religious Freedom Restoration Act of 1993, S. Rep. No. 103-111, pp. 13-14 (1993) (Senate Report); H. R. Rep. No. 103-88, p. 9 (1993) (House Report). The Fourteenth Amendment provides, in relevant part:

"Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process *517 of law; nor deny to any person within its jurisdiction the equal protection of the laws.

. . . . .

"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The parties disagree over whether RFRA is a proper exercise of Congress' § 5 power "to enforce" by "appropriate legislation" the constitutional guarantee that no State shall deprive any person of "life, liberty, or property, without due process of law," nor deny any person "equal protection of the laws."

In defense of the Act, respondent the Archbishop contends, with support from the United States, that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's Due Process Clause, the free exercise of religion, beyond what is necessary under Smith . It is said the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law's effects accords with the settled understanding that § 5 includes the power to enact legislation designed to prevent, as well as remedy, constitutional violations. It is further contended that Congress' § 5 power is not limited to remedial or preventive legislation.

All must acknowledge that § 5 is "a positive grant of legislative power" to Congress, Katzenbach v. Morgan, 384 U. S. 641, 651 (1966). In Ex parte Virginia,100 U. S. 339, 345— 346 (1880), we explained the scope of Congress' § 5 power in the following broad terms:

"Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not *518prohibited, is brought within the domain of congressional power."

Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into "legislative spheres of autonomy previously reserved to the States." Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976). For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress' parallel power to enforce the provisions of the Fifteenth Amendment, see U. S. Const., Amdt. 15, § 2, as a measure to combat racial discrimination in voting, South Carolina v. Katzenbach,383 U. S. 301, 308 (1966), despite the facial constitutionality of the tests under Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45 (1959). We have also concluded that other measures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States. South Carolina v. Katzenbach, supra(upholding several provisions of the Voting Rights Act of 1965); Katzenbach v. Morgan, supra (upholding ban on literacy tests that prohibited certain people schooled in Puerto Rico from voting); Oregon v. Mitchell, 400 U. S. 112 (1970)(upholding 5-year nationwide ban on literacy tests and similar voting requirements for registering to vote); City of Rome v. United States, 446 U. S. 156, 161 (1980)(upholding 7-year extension of the Voting Rights Act's requirement that certain jurisdictions preclear any change to a "`standard, practice, or procedure with respect to voting' "); see also James Everard's Breweries v. Day, 265 U. S. 545 (1924) (upholding ban on medical prescription of intoxicating malt liquors as appropriate to enforce Eighteenth Amendment ban on manufacture, sale, or transportation of intoxicating liquors for beverage purposes).

It is also true, however, that "[a]s broad as the congressional enforcement power is, it is not unlimited." Oregon v. *519 Mitchell, supra, at 128 (opinion of Black, J.). In assessing the breadth of § 5's enforcement power, we begin with its text. Congress has been given the power "to enforce" the "provisions of this article." We agree with respondent, of course, that Congress can enact legislation under § 5 enforcing the constitutional right to the free exercise of religion. The "provisions of this article," to which § 5 refers, include the Due Process Clause of the Fourteenth Amendment. Congress' power to enforce the Free Exercise Clause follows from our holding in Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), that the "fundamental concept of liberty embodied in [the Fourteenth Amendment's Due Process Clause] embraces the liberties guaranteed by the First Amendment." See also United States v. Price, 383 U. S. 787, 789 (1966) (there is "no doubt of the power of Congress to enforce by appropriate criminal sanction every right guaranteed by the Due Process Clause of the Fourteenth Amendment" (internal quotation marks and citation omitted)).

Congress' power under § 5, however, extends only to "enforc[ing]" the provisions of the Fourteenth Amendment. The Court has described this power as "remedial," South Carolina v. Katzenbach, supra, at 326. The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]."

While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and *520 Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. History and our case law support drawing the distinction, one apparent from the text of the Amendment.

1

The Fourteenth Amendment's history confirms the remedial, rather than substantive, nature of the Enforcement Clause. The Joint Committee on Reconstruction of the 39th Congress began drafting what would become the Fourteenth Amendment in January 1866. The objections to the Committee's first draft of the Amendment, and the rejection of the draft, have a direct bearing on the central issue of defining Congress' enforcement power. In February, Republican Representative John Bingham of Ohio reported the following draft Amendment to the House of Representatives on behalf of the Joint Committee:

"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property." Cong. Globe, 39th Cong., 1st Sess., 1034 (1866).

The proposal encountered immediate opposition, which continued through three days of debate. Members of Congress from across the political spectrum criticized the Amendment, and the criticisms had a common theme: The proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. E. g., id., at 1063-1065 (statement of Rep. Hale); id., at 1082 *521 (statement of Sen. Stewart); id., at 1095 (statement of Rep. Hotchkiss); id., at App. 133-135 (statement of Rep. Rogers). Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment "an utter departure from every principle ever dreamed of by the men who framed our Constitution," id., at 1063, and warned that under it "all State legislation, in its codes of civil and criminal jurisprudence and procedure . . . may be overridden, may be repealed or abolished, and the law of Congress established instead." Ibid. Senator William Stewart of Nevada likewise stated the Amendment would permit "Congress to legislate fully upon all subjects affecting life, liberty, and property," such that "there would not be much left for the State Legislatures," and would thereby "work an entire change in our form of government." Id., at 1082; accord, id., at 1087 (statement of Rep. Davis); id., at App. 133 (statement of Rep. Rogers). Some radicals, like their brethren "unwilling that Congress shall have any such power . . . to establish uniform laws throughout the United States upon . . . the protection of life, liberty, and property," id., at 1095 (statement of Rep. Hotchkiss), also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities, ibid. See generally Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 57 (1955); Graham, Our "Declaratory" Fourteenth Amendment, 7 Stan. L. Rev. 3, 21 (1954).

As a result of these objections having been expressed from so many different quarters, the House voted to table the proposal until April. See, e. g., B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 215, 217 (1914); Cong. Globe, 42d Cong., 1st Sess., App. 115 (1871) (statement *522 of Rep. Farnsworth). The congressional action was seen as marking the defeat of the proposal. See The Nation, Mar. 8, 1866, p. 291 ("The postponement of the amendment . . . is conclusive against the passage of [it]"); New York Times, Mar. 1, 1866, p.4 ("It is doubtful if this ever comes before the House again . . ."); see also Cong. Globe, 42d Cong., 1st Sess., at App. 115 (statement of Rep. Farnsworth) (The Amendment was "given its quietus by a postponement for two months, where it slept the sleep that knows no waking"). The measure was defeated "chiefly because many members of the legal profession s[aw] in [it] . . . a dangerous centralization of power," The Nation, supra, at 291, and "many leading Republicans of th[e] House [of Representatives] would not consent to so radical a change in the Constitution," Cong. Globe, 42d Cong., 1st Sess., at App. 151 (statement of Rep. Garfield). The Amendment in its early form was not again considered. Instead, the Joint Committee began drafting a new article of Amendment, which it reported to Congress on April 30, 1866.

Section 1 of the new draft Amendment imposed self-executing limits on the States. Section 5 prescribed that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." See Cong. Globe, 39th Cong., 1st Sess., at 2286. Under the revised Amendment, Congress' power was no longer plenary but remedial. Congress was granted the power to make the substantive constitutional prohibitions against the States effective. Representative Bingham said the new draft would give Congress "the power . . . to protect by national law the privileges and immunities of all the citizens of the Republic . . . whenever the same shall be abridged or denied by the unconstitutional acts of any State." Id., at 2542. Representative Stevens described the new draft Amendment as "allow[ing] Congress to correct the unjust legislation of the States." Id., at 2459. See also id., at 2768 (statement of Sen. Howard) (§ 5 "enables Congress, in case the States shall enact *523 laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment"). See generally H. Brannon, The Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution of the United States 387 (1901) (Congress' "powers are only prohibitive, corrective, vetoing, aimed only at undue process of law"); id., at 420, 452-455 (same); T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871) ("This amendment of the Constitution does not concentrate power in the general government for any purpose of police government within the States; its object is to preclude legislation by any State which shall `abridge the privileges or immunities of citizens of the United States' "). The revised Amendment proposal did not raise the concerns expressed earlier regarding broad congressional power to prescribe uniform national laws with respect to life, liberty, and property. See, e. g., Cong. Globe, 42d Cong., 1st Sess., at App. 151 (statement of Rep. Garfield) ("The [Fourteenth Amendment] limited but did not oust the jurisdiction of the State[s]"). After revisions not relevant here, the new measure passed both Houses and was ratified in July 1868 as the Fourteenth Amendment.

The significance of the defeat of the Bingham proposal was apparent even then. During the debates over the Ku Klux Klan Act only a few years after the Amendment's ratification, Representative James Garfield argued there were limits on Congress' enforcement power, saying "unless we ignore both the history and the language of these clauses we cannot, by any reasonable interpretation, give to [§ 5] . . . the force and effect of the rejected [Bingham] clause." Ibid.; see also id.,at App. 115-116 (statement of Rep. Farnsworth). Scholars of successive generations have agreed with this assessment. See H. Flack, The Adoption of the Fourteenth Amendment 64 (1908); Bickel, The Voting Rights Cases, 1966 S. Ct. Rev. 79, 97.

The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers *524 between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, "Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States." Flack, supra, at 64. While this separation-of-powers aspect did not occasion the widespread resistance which was caused by the proposal's threat to the federal balance, it nonetheless attracted the attention of various Members. See Cong. Globe, 39th Cong., 1st Sess., at 1064 (statement of Rep. Hale) (noting that Bill of Rights, unlike the Bingham proposal, "provide[s] safeguards to be enforced by the courts, and not to be exercised by the Legislature"); id., at App. 133 (statement of Rep. Rogers) (prior to Bingham proposal it "was left entirely for the courts . . . to enforce the privileges and immunities of the citizens"). As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing. Cf. South Carolina v. Katzenbach, 383 U. S., at 325(discussing Fifteenth Amendment). The power to interpret the Constitution in a case or controversy remains in the Judiciary.

2

The remedial and preventive nature of Congress' enforcement power, and the limitation inherent in the power, were confirmed in our earliest cases on the Fourteenth Amendment. In the Civil Rights Cases, 109 U. S. 3 (1883), the Court invalidated sections of the Civil Rights Act of 1875 which prescribed criminal penalties for denying to any person "the full enjoyment of" public accommodations and conveyances, on the grounds that it exceeded Congress' power *525 by seeking to regulate private conduct. The Enforcement Clause, the Court said, did not authorize Congress to pass "general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing . . . ." Id., at 13-14. The power to "legislate generally upon" life, liberty, and property, as opposed to the "power to provide modes of redress" against offensive state action, was "repugnant" to the Constitution. Id., at 15. See also United States v. Reese, 92 U. S. 214, 218 (1876); United States v. Harris, 106 U. S. 629, 639 (1883); James v. Bowman, 190 U. S. 127, 139 (1903). Although the specific holdings of these early cases might have been superseded or modified, see, e. g., Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964); United States v. Guest, 383 U. S. 745 (1966), their treatment of Congress' § 5 power as corrective or preventive, not definitional, has not been questioned.

Recent cases have continued to revolve around the question whether § 5 legislation can be considered remedial. In South Carolina v. Katzenbach, supra,we emphasized that "[t]he constitutional propriety of [legislation adopted under the Enforcement Clause] must be judged with reference to the historical experience . . . it reflects." 383 U. S., at 308. There we upheld various provisions of the Voting Rights Act of 1965, finding them to be "remedies aimed at areas where voting discrimination has been most flagrant," id., at 315, and necessary to "banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century," id., at 308. We noted evidence in the record reflecting the subsisting and pervasive discriminatory—and therefore unconstitutional—use of literacy tests. Id., at 333-334. The Act's new remedies, which used the administrative resources of the Federal Government, included the suspension of both literacy tests and, *526 pending federal review, all new voting regulations in covered jurisdictions, as well as the assignment of federal examiners to list qualified applicants enabling those listed to vote. The new, unprecedented remedies were deemed necessary given the ineffectiveness of the existing voting rights laws, see id., at 313-315, and the slow, costly character of case-by-case litigation, id., at 328.

After South Carolina v. Katzenbach , the Court continued to acknowledge the necessity of using strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination. See Oregon v. Mitchell, 400 U. S., at 132("In enacting the literacy test ban . . . Congress had before it a long history of the discriminatory use of literacy tests to disfranchise voters on account of their race") (opinion of Black, J.); id., at 147 (Literacy tests "have been used at times as a discriminatory weapon against some minorities, not only Negroes but Americans of Mexican ancestry, and American Indians") (opinion of Douglas, J.); id., at 216 ("Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious") (opinion of Harlan, J.); id., at 235 ("[T]here is no question but that Congress could legitimately have concluded that the use of literacy tests anywhere within the United States has the inevitable effect of denying the vote to members of racial minorities whose inability to pass such tests is the direct consequence of previous governmental discrimination in education") (opinion of Brennan, J.); id., at 284 ("[N]ationwide [suspension of literacy tests] may be reasonably thought appropriate when Congress acts against an evil such as racial discrimination which in varying degrees manifests itself in every part of the country") (opinion of Stewart, J.); City of Rome, 446 U. S., at 182 ("Congress' considered determination that at least another 7 years of statutory remedies were necessary to counter the *527 perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable"); Morgan, 384 U. S., at 656(Congress had a factual basis to conclude that New York's literacy requirement "constituted an invidious discrimination in violation of the Equal Protection Clause").

3

Any suggestion that Congress has a substantive, nonremedial power under the Fourteenth Amendment is not supported by our case law. In Oregon v. Mitchell, supra, at 112, a majority of the Court concluded Congress had exceeded its enforcement powers by enacting legislation lowering the minimum age of voters from 21 to 18 in state and local elections. The five Members of the Court who reached this conclusion explained that the legislation intruded into an area reserved by the Constitution to the States. See 400 U. S., at 125 (concluding that the legislation was unconstitutional because the Constitution "reserves to the States the power to set voter qualifications in state and local elections") (opinion of Black, J.); id., at 154 (explaining that the "Fourteenth Amendment was never intended to restrict the authority of the States to allocate their political power as they see fit") (opinion of Harlan, J.); id., at 294 (concluding that States, not Congress, have the power "to establish a qualification for voting based on age") (opinion of Stewart, J., joined by Burger, C. J., and Blackmun, J.). Four of these five were explicit in rejecting the position that § 5 endowed Congress with the power to establish the meaning of constitutional provisions. See id., at 209 (opinion of Harlan, J.); id., at 296 (opinion of Stewart, J.). Justice Black's rejection of this position might be inferred from his disagreement with Congress' interpretation of the Equal Protection Clause. See id., at 125.

There is language in our opinion in Katzenbach v. Morgan, 384 U. S. 641 (1966),which could be interpreted as acknowledging a power in Congress to enact legislation that expands *528 the rights contained in § 1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or even the best one. In Morgan, the Court considered the constitutionality of § 4(e) of the Voting Rights Act of 1965, which provided that no person who had successfully completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English could be denied the right to vote because of an inability to read or write English. New York's Constitution, on the other hand, required voters to be able to read and write English. The Court provided two related rationales for its conclusion that § 4(e) could "be viewed as a measure to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government." Id.,at 652. Under the first rationale, Congress could prohibit New York from denying the right to vote to large segments of its Puerto Rican community, in order to give Puerto Ricans "enhanced political power" that would be "helpful in gaining nondiscriminatory treatment in public services for the entire Puerto Rican community." Ibid. Section 4(e) thus could be justified as a remedial measure to deal with "discrimination in governmental services." Id., at 653. The second rationale, an alternative holding, did not address discrimination in the provision of public services but "discrimination in establishing voter qualifications." Id., at 654. The Court perceived a factual basis on which Congress could have concluded that New York's literacy requirement "constituted an invidious discrimination in violation of the Equal Protection Clause." Id., at 656. Both rationales for upholding § 4(e) rested on unconstitutional discrimination by New York and Congress' reasonable attempt to combat it. As Justice Stewart explained in Oregon v. Mitchell, supra, at 296, interpreting Morgan to give Congress the power to interpret the Constitution "would require an enormous extension of that decision's rationale."

*529 If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means." It would be "on a level with ordinary legislative acts, and, like other acts, . . .alterable when the legislature shall please to alter it." Marbury v. Madison, 1 Cranch, at 177. Under this approach, it is difficult to conceive of a principle that would limit congressional power. See Van Alstyne, The Failure of the Religious Freedom Restoration Act under Section 5 of the Fourteenth Amendment, 46 Duke L. J. 291, 292-303 (1996). Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.

We now turn to consider whether RFRA can be considered enforcement legislation under § 5 of the Fourteenth Amendment.

B

Respondent contends that RFRA is a proper exercise of Congress' remedial or preventive power. The Act, it is said, is a reasonable means of protecting the free exercise of religion as defined by Smith. It prevents and remedies laws which are enacted with the unconstitutional object of targeting religious beliefs and practices. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993) ("[A] law targeting religious beliefs as such is never permissible"). To avoid the difficulty of proving such violations, it is said, Congress can simply invalidate any law which imposes a substantial burden on a religious practice unless it is justified by a compelling interest and is the least restrictive means of accomplishing that interest. If Congress can prohibit laws with discriminatory effects in order to prevent racial discrimination in violation of the Equal Protection Clause, see Fullilove v. Klutznick, 448 U. S. 448, 477 (1980) (plurality opinion); City of Rome , 446 U. S., at 177, then it can do the same, respondent argues, to promote religious liberty.

*530 While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. See South Carolina v. Katzenbach, 383 U. S., at 308. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one. Id., at 334.

A comparison between RFRA and the Voting Rights Act is instructive. In contrast to the record which confronted Congress and the Judiciary in the voting rights cases, RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years. See, e. g., Religious Freedom Restoration Act of 1991, Hearings on H. R. 2797 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 102d Cong., 2d Sess., 331-334 (1993) (statement of Douglas Laycock) (House Hearings); The Religious Freedom Restoration Act, Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 30-31 (1993) (statement of Dallin H. Oaks) (Senate Hearing); id., at 68-76 (statement of Douglas Laycock); Religious Freedom Restoration Act of 1990, Hearing on H. R. 5377 before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 101st Cong., 2d Sess., 49 (1991) (statement of John H. Buchanan, Jr.) (1990 House Hearing). The absence of more recent episodes stems from the fact that, as one witness testified, "deliberate persecution is not the usual problem in this country." House Hearings 334 (statement of Douglas Laycock). See also House Report 2 ("[L]aws directly targeting religious practices have become increasingly rare"). Rather, the emphasis of the hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion centered *531 upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs, see, e. g., House Hearings 81 (statement of Nadine Strossen); id., at 107-110 (statement of William Yang); id., at 118 (statement of Rep. Stephen J. Solarz); id., at 336 (statement of Douglas Laycock); Senate Hearing 5-6, 14-26 (statement of William Yang); id., at 27-28 (statement of Hmong-Lao Unity Assn., Inc.); id., at 50 (statement of Baptist Joint Committee); see also Senate Report 8; House Report 5-6, and n. 14, and on zoning regulations and historic preservation laws (like the one at issue here), which, as an incident of their normal operation, have adverse effects on churches and synagogues. See, e. g., House Hearings 17, 57 (statement of Robert P. Dugan, Jr.); id., at 81 (statement of Nadine Strossen); id., at 122-123 (statement of Rep. Stephen J. Solarz); id., at 157 (statement of Edward M. Gaffney, Jr.); id., at 327 (statement of Douglas Laycock); Senate Hearing 143-144 (statement of Forest D. Montgomery); 1990 House Hearing 39 (statement of Robert P. Dugan, Jr.); see also Senate Report 8; House Report 5-6, and n. 14. It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress' concern was with the incidental burdens imposed, not the object or purpose of the legislation. See House Report 2; Senate Report 4-5; House Hearings 64 (statement of Nadine Strossen); id., at 117-118 (statement of Rep. Stephen J. Solarz); 1990 House Hearing 14 (statement of Rep. Stephen J. Solarz). This lack of support in the legislative record, however, is not RFRA's most serious shortcoming. Judicial deference, in most cases, is based not on the state of the legislative record Congress compiles but "on due regard for the decision of the body constitutionally appointed to decide." Oregon v. Mitchell, 400 U. S., at 207 (opinion of Harlan, J.). As a general *532 matter, it is for Congress to determine the method by which it will reach a decision.

Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. See City of Rome, 446 U. S., at 177 (since "jurisdictions with a demonstrable history of intentional racial discrimination . . . create the risk of purposeful discrimination," Congress could "prohibit changes that have a discriminatory impact" in those jurisdictions). Remedial legislation under § 5 "should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against." Civil Rights Cases, 109 U. S., at 13.

RFRA is not so confined. Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA's restrictions apply to every agency and official of the Federal, State, and local Governments. 42 U. S. C. § 2000bb—2(1). RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. § 2000bb—3(a). RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.

The reach and scope of RFRA distinguish it from other measures passed under Congress' enforcement power, even in the area of voting rights. In South Carolina v. Katzenbach, the challenged provisions were confined to those regions *533 of the country where voting discrimination had been most flagrant, see 383 U. S., at 315, and affected a discrete class of state laws, i. e., state voting laws. Furthermore, to ensure that the reach of the Voting Rights Act was limited to those cases in which constitutional violations were most likely (in order to reduce the possibility of overbreadth), the coverage under the Act would terminate "at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the preceding five years." Id., at 331. The provisions restricting and banning literacy tests, upheld in Katzenbach v. Morgan, 384 U. S. 641 (1966), and Oregon v. Mitchell, supra, attacked a particular type of voting qualification, one with a long history as a "notorious means to deny and abridge voting rights on racial grounds." South Carolina v. Katzenbach, 383 U. S., at 355 (Black, J., concurring and dissenting). In City of Rome, supra, the Court rejected a challenge to the constitutionality of a Voting Rights Act provision which required certain jurisdictions to submit changes in electoral practices to the Department of Justice for preimplementation review. The requirement was placed only on jurisdictions with a history of intentional racial discrimination in voting. Id.,at 177. Like the provisions at issue in South Carolina v. Katzenbach, this provision permitted a covered jurisdiction to avoid preclearance requirements under certain conditions and, moreover, lapsed in seven years. This is not to say, of course, that § 5 legislation requires termination dates, geographic restrictions, or egregious predicates. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5.

The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the *534 State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone's exercise of religion will often be difficult to contest. See Smith , 494 U. S., at 887 ("What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is `central' to his personal faith?"); id., at 907 ("The distinction between questions of centrality and questions of sincerity and burden is admittedly fine . . .") (O'Connor, J., concurring in judgment). Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If "`compelling interest' really means what it says . . . , many laws will not meet the test. . . . [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." Id., at 888. Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. We make these observations not to reargue the position of the majority in Smith but to illustrate the substantive alteration of its holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens.

The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of *535 their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive. Cf. Washington v. Davis, 426 U. S. 229, 241 (1976). RFRA's substantial-burden test, however, is not even a discriminatory-effects or disparate-impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least restrictive means requirement—a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify—which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.

When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution. This has been clear from the early days of the Republic. In 1789, when a Member of the House of Representatives objected to a debate on the constitutionality of legislation based on the theory that "it would be officious" to consider the constitutionality of a measure that did not affect the House, James Madison explained that "it is incontrovertibly of as much importance to this branch of the Government as to any other, that the constitution should be preserved entire. It is our duty." 1 Annals of Congress 500 (1789). Were it otherwise, we would not afford Congress the presumption of validity its enactments now enjoy.

Our national experience teaches that the Constitution is preserved best when each part of the Government respects *536 both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. Marbury v. Madison, 1 Cranch, at 177. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control.

* * *

It is for Congress in the first instance to "determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment," and its conclusions are entitled to much deference. Katzenbach v. Morgan, 384 U. S., at 651. Congress' discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act's constitutionality is reversed.

It is so ordered.

†

 Justice Scalia joins all but Part III—A-1 of this opinion.

Justice Stevens, concurring.

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a "law respecting an establishment of religion" that violates the First Amendment to the Constitution.

*537 If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U. S. 38, 52-55 (1985).

Justice Scalia, with whom Justice Stevens joins, concurring in part.

I write to respond briefly to the claim of Justice O'Connor's dissent (hereinafter the dissent) that historical materials support a result contrary to the one reached in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). See post, p. 544 (dissenting opinion). We held in Smith that the Constitution's Free Exercise Clause "does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " 494 U. S., at 879 (quoting United States v. Lee, 455 U. S. 252, 263, n. 3 (1982) (Stevens, J., concurring in judgment)). The material that the dissent claims is at odds with Smith either has little to say about the issue or is in fact more consistent with Smith than with the dissent's interpretation of the Free Exercise Clause. The dissent's extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that "constitutionally *538 compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause." McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990) (emphasis added); see also Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992) (arguing that historical evidence supports Smith `s interpretation of free exercise).

The dissent first claims that Smith `s interpretation of the Free Exercise Clause departs from the understanding reflected in various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights. Post, at 550-557. But the protections afforded by those enactments are in fact more consistent with Smith `s interpretation of free exercise than with the dissent's understanding of it. The Free Exercise Clause, the dissent claims, "is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law"; thus, even neutral laws of general application may be invalid if they burden religiously motivated conduct. Post, at 546. However, the early "free exercise" enactments cited by the dissent protect only against action that is taken "for" or "in respect of" religion, post, at 551-553 (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken "on account of" religion, post, at 553-554 (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or "discriminat[ory]" action, post, at 553 (New York Constitution); or, finally (and unhelpfully for purposes of interpreting "free exercise" in the Federal Constitution), action that interferes with the "free exercise" of religion, post, at 551, 554 (Maryland Act *539 Concerning Religion of 1649 and Georgia Constitution). It is eminently arguable that application of neutral, generally applicable laws of the sort the dissent refers to—such as zoning laws, post, at 547—would not constitute action taken "for," "in respect of," or "on account of" one's religion, or "discriminatory" action.

Assuming, however, that the affirmative protection of religion accorded by the early "free exercise" enactments sweeps as broadly as the dissent's theory would require, those enactments do not support the dissent's view, since they contain "provisos" that significantly qualify the affirmative protection they grant. According to the dissent, the "provisos" support its view because they would have been "superfluous" if "the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience." Post, at 554-555. I disagree. In fact, the most plausible reading of the "free exercise" enactments (if their affirmative provisions are read broadly, as the dissent's view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct. The "provisos" in the enactments negate a license to act in a manner "unfaithfull to the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behav[e]" in other than a "peaceabl[e] and quie[t]" manner (Rhode Island Charter of 1663), or "disturb the public peace" (New Hampshire Constitution), or interfere with the "peace [and] safety of th[e] State" (New York, Maryland, and Georgia Constitutions), or "demea[n]" oneself in other than a "peaceable and orderly manner" (Northwest Ordinance of 1787). See post,at 551-554. At the time these provisos were enacted, keeping "peace" and "order" seems to have meant, precisely, obeying the laws. "[E]very breach of a law is against the peace." Queen v. Lane, 6 Mod. 128, 87 Eng. Rep. 884, 885 (Q. B. 1704). Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of "peace": "8. Public *540 tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace. " 2 An American Dictionary of the English Language 31 (1828).1 This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right "to do only what was not lawfully prohibited," West, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J. L., Ethics & Pub. Pol'y 591, 624 (1990). "Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions." Hamburger, supra, at 918-919.2And while, under this interpretation, these early "free exercise" enactments support the Court's judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O'Connor, or any of Smith `s other critics. No one in that camp, to my knowledge, contends that their favored "compelling state interest" test conforms to any possible interpretation of "breach of peace and order"—i. e., that only violence or force, or any other category of action (more limited than "violation of law") which can possibly be conveyed by the phrase "peace and order," justifies state prohibition of religiously motivated conduct.

*541 Apart from the early "free exercise" enactments of Colonies, States, and Territories, the dissent calls attention to those bodies', and the Continental Congress's, legislative accommodation of religious practices prior to ratification of the Bill of Rights. Post, at 557-560. This accommodation—which took place both before and after enactment of the state constitutional protections of religious liberty—suggests (according to the dissent) that "the drafters and ratifiers of the First Amendment . . . assumed courts would apply the Free Exercise Clause similarly." Post, at 560. But that legislatures sometimes (though not always)3 found it "appropriate," post, at 559, to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause. As we explained in Smith, "to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required." 494 U. S., at 890. "Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process." Ibid.

The dissent's final source of claimed historical support consists of statements of certain of the Framers in the context of debates about proposed legislative enactments or debates over general principles (not in connection with the drafting of State or Federal Constitutions). Those statements are subject to the same objection as was the evidence about legislative accommodation: There is no reason to think they were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable. Thus, for example, the pamphlet written by James Madison opposing Virginia's proposed general assessment for support of religion, *542 post, at 560-561, does not argue that the assessment would violate the "free exercise" provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier, post, at 556; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators, post,at 560-561. Likewise, the letter from George Washington to the Quakers, post, at 562, by its own terms refers to Washington's "wish and desire" that religion be accommodated, not his belief that existing constitutional provisions required accommodation. These and other examples offered by the dissent reflect the speakers' views of the "proper" relationship between government and religion, post, at 563, but not their views (at least insofar as the content or context of the material suggests) of the constitutionally required relationship. The one exception is the statement by Thomas Jefferson that he considered "the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises," post, at 562 (internal quotation marks omitted); but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent, see McConnell, 103 Harv. L. Rev., at 1449-1452.

It seems to me that the most telling point made by the dissent is to be found, not in what it says, but in what it fails to say. Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none—and to my knowledge, and to the knowledge of the academic defenders of the dissent's position, see, e. g., id., at 1504, 1506-1511 (discussing early *543 cases), none exists. The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777, quoted post, at 553, required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. People v. Phillips, Court of General Sessions, City of New York (June 14, 1813), excerpted in Privileged Communications to Clergymen, 1 Cath. Law. 199 (1955). Even this lone case is weak authority, not only because it comes from a minor court,4 but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court's simply modifying the common-law rules of evidence to recognize such a privilege. On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent's view. In Simon's Executors v. Gratz, 2 Pen. & W. 412 (Pa. 1831), the court held that a litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his religious principles. And in Stansbury v. Marks, 2 Dall. 213 (Pa. 1793), decided just two years after the ratification of the Bill of Rights, the court imposed a fine on a witness who "refused to be sworn, because it was his Sabbath."5

I have limited this response to the new items of "historical evidence" brought forward by today's dissent. (The dissent's *544 claim that "[b]efore Smith, our free exercise cases were generally in keeping" with the dissent's view, post, at 546, is adequately answered in Smith itself.) The historical evidence marshalled by the dissent cannot fairly be said to demonstrate the correctness of Smith; but it is more supportive of that conclusion than destructive of it. And, to return to a point I made earlier, that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith. The dissent's approach has, of course, great popular attraction. Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether (as the dissent apparently believes, post , at 547) church construction will be exempt from zoning laws? The historical evidence put forward by the dissent does nothing to undermine the conclusion we reached in Smith: It shall be the people.

1

 The word "licentious," used in several of the early enactments, likewise meant "[e]xceeding the limits of law." 2 An American Dictionary of the English Language 6 (1828).

2

 The same explanation applies, of course, to George Mason's initial draft of Virginia's religious liberty clause, see post, at 555. When it said "unless, under colour of religion, any man disturb the peace . . . of society," it probably meant "unless under color of religion any man break the law." Thus, it is not the case that "both Mason's and [James] Madison's formulations envisioned that, when there was a conflict [between religious exercise and generally applicable laws], a person's interest in freely practicing his religion was to be balanced against state interests," post, at 556—at least insofar as regulation of conduct was concerned.

3

 The dissent mentions, for example, that only 7 of the 13 Colonies had exempted Quakers from military service by the mid-1700's; and that "virtually all" of the States had enacted oath exemptions by 1789. Post, at 558 (emphasis added).

 The Court of General Sessions was a mayor's court, and the ruling in Phillips was made by DeWitt Clinton, the last mayor to preside over that court, which was subsequently reconstituted as the Court of Common Pleas. Clinton had never been a jurist, and indeed had never practiced law. Some years before Phillips, he was instrumental in removing the political disabilities of Catholics in New York. See 4 Dictionary of American Biography 221-222, 224 (1943).

5

 Indeed, the author of Simon's Executors could well have written Smith: "[C]onsiderations of policy address themselves with propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established." 2 Pen. & W., at 417.

Justice O'Connor, with whom Justice Breyer joins except as to the first paragraph of Part I, dissenting.

I dissent from the Court's disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act of 1993 (RFRA) is a proper exercise of Congress' power to enforce § 5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was *545 wrongly decided, and I would use this case to reexamine the Court's holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.

I

I agree with much of the reasoning set forth in Part III—A of the Court's opinion. Indeed, if I agreed with the Court's standard in Smith, I would join the opinion. As the Court's careful and thorough historical analysis shows, Congress lacks the "power to decree the substance of the Fourteenth Amendment's restrictions on the States." Ante, at 519 (emphasis added). Rather, its power under § 5 of the Fourteenth Amendment extends only to enforcing the Amendment's provisions. In short, Congress lacks the ability independently to define or expand the scope of constitutional rights by statute. Accordingly, whether Congress has exceeded its § 5 powers turns on whether there is a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Ante, at 520. This recognition does not, of course, in any way diminish Congress' obligation to draw its own conclusions regarding the Constitution's meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates. But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court's exposition of the Constitution and with the limits *546 placed on its legislative authority by provisions such as the Fourteenth Amendment.

The Court's analysis of whether RFRA is a constitutional exercise of Congress' § 5 power, set forth in Part III—B of its opinion, is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims. In Smith, five Members of this Court—without briefing or argument on the issue—interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as the prohibition is generally applicable. Contrary to the Court's holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. See Smith, supra, at 892-903 (O'Connor, J., concurring in judgment). Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct— regardless whether it was specifically targeted at religion or applied generally—we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest. See 494 U. S., at 894 (citing Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 141 (1987); United States v. Lee, 455 U. S. 252, 257-258 (1982); McDaniel v. Paty,435 U. S. 618, 626-629 (1978); Wisconsin v. Yoder, 406 U. S. 205, 215 (1972); Gillette v. United States, 401 U. S. 437, 462 (1971); Sherbert v. Verner, 374 U. S. 398, 403 (1963)).

*547 The Court's rejection of this principle in Smith is supported neither by precedent nor, as discussed below, by history. The decision has harmed religious liberty. For example, a Federal District Court, in reliance on Smith, ruled that the Free Exercise Clause was not implicated where Hmong natives objected on religious grounds to their son's autopsy, conducted pursuant to a generally applicable state law. Yang v. Sturner, 750 F. Supp. 558, 559 (RI 1990). The Court of Appeals for the Eighth Circuit held that application of a city's zoning laws to prevent a church from conducting services in an area zoned for commercial uses raised no free exercise concerns, even though the city permitted secular not-for-profit organizations in that area. Cornerstone Bible Church v. Hastings, 948 F. 2d 464 (1991); see also Rector of St. Bartholomew's Church v. New York, 914 F. 2d 348, 355 (CA2 1990) (no free exercise claim where city's application of facially neutral landmark designation law "drastically restricted the Church's ability to raise revenue to carry out its various charitable and ministerial programs"), cert. denied, 499 U. S. 905 (1991); State v. Hershberger, 462 N. W. 2d 393 (Minn. 1990) (Free Exercise Clause provided no basis for exempting an Amish farmer from displaying a bright orange triangle on his buggy, to which the farmer objected on religious grounds, even though the evidence showed that some other material would have served the State's purpose equally well). These cases demonstrate that lower courts applying Smith no longer find necessary a searching judicial inquiry into the possibility of reasonably accommodating religious practice.

Stare decisis concerns should not prevent us from revisiting our holding in Smith."`[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.' " Adarand Constructors, Inc. v. Peña, 515 U. S. *548 200, 231 (1995) (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940)). This principle is particularly true in constitutional cases, where—as this case so plainly illustrates—"correction through legislative action is practically impossible." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 63 (1996) (internal quotation marks and citation omitted). I believe that, in light of both our precedent and our Nation's tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 855-856 (1992).

Accordingly, I believe that we should reexamine our holding in Smith, and do so in this very case. In its place, I would return to a rule that requires government to justify any substantial burden on religiously motivated conduct by a compelling state interest and to impose that burden only by means narrowly tailored to achieve that interest.

II

I shall not restate what has been said in other opinions, which have demonstrated that Smith is gravely at odds with our earlier free exercise precedents. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 570-571 (1993) (Souter, J., concurring in part and concurring in judgment) (stating that it is "difficult to escape the conclusion that, whatever Smith `s virtues, they do not include a comfortable fit with settled law"); Smith , 494 U. S., at 894-901 (O'Connor, J., concurring in judgment); see also McConnell, Free Exercise Revisionism and the SmithDecision, 57 U. Chi. L. Rev. 1109, 1120-1127 (1990). Rather, I examine here the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clause—an inquiry the Court in Smith did not undertake. We have previously recognized the importance of interpreting the Religion Clauses in light of their history. Lynch v. Donnelly, 465 U. S. 668, 673 (1984) ("The Court's *549 interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees"); School Dist. of Abington Township v. Schempp, 374 U. S. 203, 212-214 (1963).

The historical evidence casts doubt on the Court's current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our preSmith jurisprudence.

A

The original Constitution, drafted in 1787 and ratified by the States in 1788, had no provisions safeguarding individual liberties, such as freedom of speech or religion. Federalists, the chief supporters of the new Constitution, took the view that amending the Constitution to explicitly protect individual freedoms was superfluous, since the rights that the amendments would protect were already completely secure. See, e. g., 1 Annals of Congress 440, 443-444, 448-459 (Gales and Seaton ed. 1834) (remarks of James Madison, June 8, 1789). Moreover, they feared that guaranteeing certain civil liberties might backfire, since the express mention of some freedoms might imply that others were not protected. According to Alexander Hamilton, a Bill of Rights would even be dangerous, in that by specifying "various exceptions to powers" not granted, it "would afford a colorable pretext to claim more than were granted." The Federalist No. 84, p. 513 (C. Rossiter ed. 1961). Anti-Federalists, however, insisted on more definite guarantees. Apprehensive that the newly established Federal Government would overwhelm the rights of States and individuals, they wanted explicit assurances that the Federal Government had no power in matters of personal liberty. T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 194 (1986). Additionally, Baptists and other Protestant dissenters feared for their religious liberty under *550 the new Federal Government and called for an amendment guaranteeing religious freedom. Id., at 198.

In the end, legislators acceded to these demands. By December 1791, the Bill of Rights had been added to the Constitution. With respect to religious liberty, the First Amendment provided: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U. S. Const., Amdt. 1. Neither the First Congress nor the ratifying state legislatures debated the question of religious freedom in much detail, nor did they directly consider the scope of the First Amendment's free exercise protection. It would be disingenuous to say that the Framers neglected to define precisely the scope of the Free Exercise Clause because the words "free exercise" had a precise meaning. L. Levy, Essays on American Constitutional History 173 (1972). As is the case for a number of the terms used in the Bill of Rights, it is not exactly clear what the Framers thought the phrase signified. Ibid. ("[I]t is astonishing to discover that the debate on a Bill of Rights was conducted on a level of abstraction so vague as to convey the impression that Americans of 1787-1788 had only the most nebulous conception of the meanings of the particular rights they sought to insure"). But a variety of sources supplement the legislative history and shed light on the original understanding of the Free Exercise Clause. These materials suggest that—contrary to Smith —the Framers did not intend simply to prevent the government from adopting laws that discriminated against religion. Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the government's ability to intrude on religious practice.

B

The principle of religious "free exercise" and the notion that religious liberty deserved legal protection were by no *551 means new concepts in 1791, when the Bill of Rights was ratified. To the contrary, these principles were first articulated in this country in the Colonies of Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina, in the mid1600's. These Colonies, though established as sanctuaries for particular groups of religious dissenters, extended freedom of religion to groups—although often limited to Christian groups—beyond their own. Thus, they encountered early on the conflicts that may arise in a society made up of a plurality of faiths.

The term "free exercise" appeared in an American legal document as early as 1648, when Lord Baltimore extracted from the new Protestant Governor of Maryland and his councilors a promise not to disturb Christians, particularly Roman Catholics, in the "free exercise" of their religion. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1425 (1990) (hereinafter Origins of Free Exercise). Soon after, in 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: "[N]oe person . . . professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof . . . nor any way [be] compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Government." Act Concerning Religion of 1649, reprinted in 5 The Founders' Constitution 49, 50 (P. Kurland & R. Lerner eds. 1987) (hereinafter Founders' Constitution). Rhode Island's Charter of 1663 used the analogous term "liberty of conscience." It protected residents from being in any ways "molested, punished, disquieted, or called in question, for any differences in opinione, in matters of religion, and doe not actually disturb the civil peace of our sayd colony." The Charter further provided that residents may "freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious *552 concernments . . . ; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others." Charter of Rhode Island and Providence Plantations, 1663, in 8 W. Swindler, Sources and Documents of United States Constitutions 363 (1979) (hereinafter Swindler). Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663. See New York Act Declaring Rights & Priviledges (1691); Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New-Jersey (1664); Laws of West NewJersey, Art. X (1681); Fundamental Constitutions for East New-Jersey, Art. XVI (1683); First Charter of Carolina, Art. XVIII (1663). N. Cogan, The Complete Bill of Rights 23-27 (Galley 1997).

These documents suggest that, early in our country's history, several Colonies acknowledged that freedom to pursue one's chosen religious beliefs was an essential liberty. Moreover, these Colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent "licentiousness." In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise. Such notions parallel the ideas expressed in our pre-Smith cases—that government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest.

C

The principles expounded in these early charters reemerged over a century later in state constitutions that were adopted in the flurry of constitution drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise *553 clause into its constitution. Origins of Free Exercise 1455. These state provisions, which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution's protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses. The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided:

"[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuseacts of licentiousness, or justify practices inconsistent with the peace or safety of this State. " N. Y. Const., Art. XXXVIII, in 7 Swindler 178 (emphasis added).

Similarly, the New Hampshire Constitution of 1784 declared:

"Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, . . . provided he doth not disturb the public peace, or disturb others, in their religious worship." N. H. Const., Art. I, § 5, in 6 Swindler 345 (emphasis added).

The Maryland Declaration of Rights of 1776 read:

"[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion *554 or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights." Md. Const., Declaration of Rights, Art. XXXIII in 4 Swindler 374 (emphasis added).

The religious liberty clause of the Georgia Constitution of 1777 stated:

"All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State. " Ga. Const., Art. LVI, in 2 Swindler 449 (emphasis added).

In addition to these state provisions, the Northwest Ordinance of 1787—which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress—established a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared:

"No person, demeaning himself in a peaceable and or- derly manner,shall ever be molested on account of his mode of worship or religious sentiments, in the said territory." Northwest Territory Ordinance of 1787, Art. I, 1 Stat. 52 (emphasis added).

The language used in these state constitutional provisions and the Northwest Ordinance strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to "free exercise" required, where possible, accommodation of religious practice. If not—and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience— there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be "construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State." Such a proviso would have been superfluous. *555Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.

The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional Convention wrote a constitution containing a Declaration of Rights with a clause on religious liberty. The initial drafter of the clause, George Mason, proposed the following:

"That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other." Committee Draft of the Virginia Declaration of Rights, 1 Papers of George Mason 284— 285 (R. Rutland ed. 1970) (emphasis added).

Mason's proposal did not go far enough for a 26-year-old James Madison, who had recently completed his studies at the Presbyterian College of Princeton. He objected first to Mason's use of the term "toleration," contending that the word implied that the right to practice one's religion was a governmental favor, rather than an inalienable liberty. Second, Madison thought Mason's proposal countenanced too much state interference in religious matters, since the "exercise of religion" would have yielded whenever it was deemed inimical to "the peace, happiness, or safety of society." Madison suggested the provision read instead:

"`That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction *556 of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preserva- tion of equal liberty, and the existence of the State bemanifestly endangered.' " G. Hunt, James Madison and Religious Liberty, in 1 Annual Report of the American Historical Association, H. R. Doc. No. 702, 57th Cong., 1st Sess., 163, 166-167 (1901) (emphasis added).

Thus, Madison wished to shift Mason's language of "toleration" to the language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902) (reprint 1970) (noting that Madison objected to the word "toleration" as belonging to "a system where was an established Church, and where a certain liberty of worship was granted, not of right, but of grace"). Additionally, under Madison's proposal, the State could interfere in a believer's religious exercise only if the State would otherwise "be manifestly endangered." In the end, neither Mason's nor Madison's language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution's religious liberty clause. Like the Federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." Virginia Declaration of Rights, Art. XVI (1776), in 10 Swindler 50. For our purposes, however, it is telling that bothMason's and Madison's formulations envisioned that, when there was a conflict, a person's interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant if either had thought the right to free exercise did not *557 include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Mason's narrower and Madison's broader notions of the right to religious freedom.

D

The practice of the Colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice. Unsurprisingly, of course, even in the American Colonies inhabited by people of religious persuasions, religious conscience and civil law rarely conflicted. Most 17th and 18th century Americans belonged to denominations of Protestant Christianity whose religious practices were generally harmonious with colonial law. Curry, The First Freedoms, at 219 ("The vast majority of Americans assumed that theirs was a Christian, i. e. Protestant, country, and they automatically expected that government would uphold the commonly agreed on Protestant ethos and morality"). Moreover, governments then were far smaller and less intrusive than they are today, which made conflict between civil law and religion unusual.

Nevertheless, tension between religious conscience and generally applicable laws, though rare, was not unknown in preconstitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the Colonies and early States thought that, if an individual's religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the law's coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or "swear" allegiance to civil authority. A. Adams & C. Emmerich, *558 A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirement for these individuals. In early decisions, for example, the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56. Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation, and in 1734, it permitted Quakers to qualify to vote by affirmation. Id., at 64. By 1789, virtually all of the States had enacted oath exemptions. See Adams & Emmerich 62.

Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military service in the late 1600's. New York, Massachusetts, Virginia, and New Hampshire followed suit in the mid-1700's. Origins of Free Exercise 1468. The Continental Congress likewise granted exemption from conscription:

"As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently *559 with their religious principles." Resolution of July 18, 1775, reprinted in 2 Journals of the Continental Congress, 1774-1789, pp. 187, 189 (W. Ford ed. 1905).

Again, this practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practice and civil obligation. Notably, the Continental Congress exempted objectors from conscription to avoid "violence to their consciences," explicitly recognizing that civil laws must sometimes give way to freedom of conscience. Origins of Free Exercise 1468.

States and Colonies with established churches encountered a further religious accommodation problem. Typically, these governments required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government compelled tithes on religious grounds. Id., at 1469. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments. Ibid. There are additional examples of early conflicts between civil laws and religious practice that were similarly settled through accommodation of religious exercise. Both North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith. Id., at 1471.

To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties—judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious *560 conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment—many of whom served in state legislatures—assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded.

E

The writings of the early leaders who helped to shape our Nation provide a final source of insight into the original understanding of the Free Exercise Clause. The thoughts of James Madison—one of the principal architects of the Bill of Rights—as revealed by the controversy surrounding Virginia's General Assessment Bill of 1784, are particularly illuminating. Virginia's debate over religious issues did not end with its adoption of a constitutional free exercise provision. Although Virginia had disestablished the Church of England in 1776, it left open the question whether religion might be supported on a nonpreferential basis by a so-called "general assessment." Levy, Essays on American Constitutional History, at 200. In the years between 1776 and 1784, the issue how to support religion in Virginia—either by general assessment or voluntarily—was widely debated. Curry, The First Freedoms, at 136.

By 1784, supporters of a general assessment, led by Patrick Henry, had gained a slight majority in the Virginia Assembly. M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 23 (1978); Levy, supra, at 200. They introduced "A Bill Establishing a Provision for the Teachers of the Christian Religion," which proposed that citizens be taxed in order to support the Christian denomination of their choice, with those taxes not designated for any specific denomination to go to a public fund to aid seminaries. Levy, supra, at 200-201; Curry, supra, at 140— 141; Malbin, supra, at 23. Madison viewed religious assessment as a dangerous infringement of religious liberty and led the opposition to the bill. He took the case against religious assessment to the people of Virginia in his now-famous "Memorial *561 and Remonstrance Against Religious Assessments." Levy, supra, at 201. This pamphlet led thousands of Virginians to oppose the bill and to submit petitions expressing their views to the legislature. Malbin, supra, at 24. The bill eventually died in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779. Malbin, supra, at 24.

The "Memorial and Remonstrance" begins with the recognition that "[t]he Religion ... of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." 2 Writings of James Madison 184 (G. Hunt ed. 1901). By its very nature, Madison wrote, the right to free exercise is "unalienable," both because a person's opinion "cannot follow the dictates of other[s]," and because it entails "a duty towards the Creator." Ibid.Madison continued:

"This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society. . . . [E]very man who becomes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance." Id., at 184-185.

To Madison, then, duties to God were superior to duties to civil authorities—the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.

*562 Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only "when principles break out into overt acts against peace and good order." In 1808, he indicated that he considered "`the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.' " 11 The Writings of Thomas Jefferson 428-429 (A. Lipscomb ed. 1904) (quoted in Office of Legal Policy, U. S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that "`[e]very religious society has a right to determine for itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.' " Ibid.

George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:

"[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit." Letter from George Washington to the Religious Society Called Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphrey ed. 1932).

Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary "to prohibit and punish gross immoralities *563 and impieties; because the open practice of these is of evil example and detriment." Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787), reprinted in 4 Founders' Constitution 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that "`every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.' " Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts-Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed. 1968).

These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 21-31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) ("[O]ur whole constitutional history . . . supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances . . . "). As Madison put it in the concluding argument of his "Memorial and Remonstrance":

"`[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience' is held by the same tenure with all our other rights. . . . [I]t is equally the gift of nature; . . . it cannot be less dear to us; . . . it is enumerated with equal solemnity, *564 or rather studied emphasis." 2 Writings of James Madison, at 190.

Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich 31. Finally, all shared the conviction that "`true religion and good morals are the only solid foundation of public liberty and happiness.' " Curry, The First Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich 72 ("The Founders . . . acknowledged that the republic rested largely on moral principles derived from religion"). To give meaning to these ideas—particularly in a society characterized by religious pluralism and pervasive regulation—there will be times when the Constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law.

III

The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation's Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer's conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment. For example, it has long been the Court's position that freedom of speech—a right enumerated only a few words after the right to free exercise—has special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude *565 that both should be treated with the highest degree of respect.

Although it may provide a bright line, the rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its holding in Smith —and to do so in this very case. I would therefore direct the parties to brief this issue and set the case for reargument.

I respectfully dissent from the Court's disposition of this case.

Justice Souter, dissenting.

To decide whether the Fourteenth Amendment gives Congress sufficient power to enact the Religious Freedom Restoration Act of 1993, the Court measures the legislation against the free-exercise standard of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). For the reasons stated in my opinion in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 564-577 (1993) (opinion concurring in part and concurring in judgment), I have serious doubts about the precedential value of the Smith rule and its entitlement to adherence. These doubts are intensified today by the historical arguments going to the original understanding of the Free Exercise Clause presented in Justice O'Connor's dissent, ante, at 548-564, which raises very substantial issues about the soundness of the Smith rule. See also ante, p. 537 (Justice Scalia, concurring in part) (addressing historical arguments). But without briefing and argument on the merits of that rule (which this Court has never had in any case, including Smith itself, see Lukumi, 508 U. S., at 571-572), I am not now prepared to join Justice O'Connor in rejecting it or the majority in assuming it to be correct. In order to provide full adversarial consideration, this case should be set down for reargument permitting plenary reexamination of the issue. Since the Court declines to follow that course, our free-exercise *566 law remains marked by an "intolerable tension," id., at 574, and the constitutionality of the Act of Congress to enforce the free-exercise right cannot now be soundly decided. I would therefore dismiss the writ of certiorari as improvidently granted, and I accordingly dissent from the Court's disposition of this case.

Justice Breyer, dissenting.

I agree with Justice O'Connor that the Court should direct the parties to brief the question whether Employment Div., Dept. of Human Resources of Ore. v. Smith,494 U. S. 872 (1990), was correctly decided, and set this case for reargument. I do not, however, find it necessary to consider the question whether, assuming Smith is correct, § 5 of the Fourteenth Amendment would authorize Congress to enact the legislation before us. Thus, while I agree with some of the views expressed in the first paragraph of Part I of Justice O'Connor's dissent, I do not necessarily agree with all of them. I therefore join Justice O'Connor's dissent, with the exception of the first paragraph of Part I.

Board of the Trustees of University of Alabama et al., Petitioners, v. Patricia Garrett et al.

Argued October 11, 2000.

Decided February 21, 2001.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

*358 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined, post, p. 374. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 376.

Jeffrey S. Sutton argued the cause for petitioners. With him on the briefs were Bill Pryor, Attorney General of Alabama, Alice Ann Byrne and Margaret L. Fleming,Assistant Attorneys General, Gregory G. Katsas, and Lisa Huggins.

Michael H. Gottesman argued the cause for respondents. With him on the brief were Arlene Mayerson, Laurence Gold, Deborah Mattison, Sandra Reiss, Ira Burnim, and Jennifer Mathis.

Solicitor General Waxman argued the cause for the United States as amicus curiae urging affirmance. With *359 him on the brief were Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Jessica Dunsay Silver, and Seth M. Galanter.*

*

 Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Audrey J. Anderson, Earl I. Anzai, Attorney General of Hawaii, Charles F. Fell, Senior Deputy Attorney General, and Nancy Albano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Alan G. Lance of Idaho, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper.

Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Mike Hatch,Attorney General of Minnesota, Alan I. Gilbert, Chief Deputy Attorney General, and W. Karl Hansen,Assistant Attorney General, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, James E. Ryan of Illinois, Thomas J. Miller of Iowa, A. B. "Ben" Chandler III of Kentucky, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the American Association on Mental Retardation et al. by James W. Ellis, Michael B. Browde, and Christian G. Fritz; for the American Association of People with Disabilities et al. by John Townsend Rich; for the American Bar Association by Robert Lewin, James A. Shifren, and Claude G. Szyfer; for the American Cancer Society by Daniel G. Jarcho, Michael J. Haungs, William J. Dalton,and Mary P. Rouvelas; for the Lambda Legal Defense & Education Fund, Inc., et al. by Catherine A. Hanssens and David S. Buckel; for the National Association of Protection and Advocacy Systems et al. by Mark E. Haddad, Jacqueline G. Cooper, and Sharon Masling; for the National Council on Disability by Robert L. Burgdorf, Jr.; for Self-Advocates Becoming Empowered et al. by Thomas K. Gilhool, Michael Churchill, Barbara Ransom, and Max Lapertosa; for the Voice of the Retarded et al. by William J. Burke and Tamie Hopp; for Senator Robert Dole et al. by Chai R. Feldblum; and for Law Professors by Leo G. Rydzewski.

Briefs of amici curiae were filed for the Association of State Correctional Administrators by Marci A. Hamilton; for the Coalition for Local Sovereignty by Kenneth B. Clark; for the National Employment Lawyers Association et al. by Daniel F. Goldstein, C. Christopher Brown, and Merl H. Wayman; for Paralyzed Veterans of America et al. by Ted G. Dane and Eve Hill; for the Southern Poverty Law Center by Pamela L. Sumners and Elizabeth J. Hubertz; and for Morton Horwitz et al. by Kenneth W. Brothers, Elizabeth B. McCallum, and Claudia Center. A. Stephen Hut, Jr., filed a statement by former President George H. W. Bush as amicus curiae.

*360 Chief Justice Rehnquist delivered the opinion of the Court.

We decide here whether employees of the State of Alabama may recover money damages by reason of the State's failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U. S. C. §§ 12111-12117.1 We hold that such suits are barred by the Eleventh Amendment.

The ADA prohibits certain employers, including the States, from "discriminat[ing] against a qualified individual *361 with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." §§ 12112(a), 12111(2), (5), (7). To this end, the Act requires employers to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business." § 12112(b)(5)(A).

"`[R]easonable accommodation' may include— "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." § 12111(9).

The Act also prohibits employers from "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability." § 12112(b)(3)(A).

The Act defines "disability" to include "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." § 12102(2). A disabled individual is otherwise "qualified" if he or she, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8).

*362 Respondent Patricia Garrett, a registered nurse, was employed as the Director of Nursing, OB/Gyn/Neonatal Services, for the University of Alabama in Birmingham Hospital. See App. 31, 38. In 1994, Garrett was diagnosed with breast cancer and subsequently underwent a lumpectomy, radiation treatment, and chemotherapy. See id., at 38. Garrett's treatments required her to take substantial leave from work. Upon returning to work in July 1995, Garrett's supervisor informed Garrett that she would have to give up her Director position. See id., at 39. Garrett then applied for and received a transfer to another, lower paying position as a nurse manager. See ibid.

Respondent Milton Ash worked as a security officer for the Alabama Department of Youth Services (Department). See id., at 8. Upon commencing this employment, Ash informed the Department that he suffered from chronic asthma and that his doctor recommended he avoid carbon monoxide and cigarette smoke, and Ash requested that the Department modify his duties to minimize his exposure to these substances. See ibid. Ash was later diagnosed with sleep apnea and requested, again pursuant to his doctor's recommendation, that he be reassigned to daytime shifts to accommodate his condition. See id., at 9. Ultimately, the Department granted none of the requested relief. See id., at 8-9. Shortly after Ash filed a discrimination claim with the Equal Employment Opportunity Commission, he noticed that his performance evaluations were lower than those he had received on previous occasions. See id., at 9.

Garrett and Ash filed separate lawsuits in the District Court, both seeking money damages under the ADA.2 Petitioners moved for summary judgment, claiming that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. See 989 F. Supp. 1409, 1410 (ND Ala. 1998). In a single opinion disposing of both *363 cases, the District Court agreed with petitioners' position and granted their motions for summary judgment. See id., at 1410, 1412. The cases were consolidated on appeal to the Eleventh Circuit. The Court of Appeals reversed, 193 F. 3d 1214 (1999), adhering to its intervening decision in Kimel v. State Bd. of Regents, 139 F. 3d 1426, 1433 (CA11 1998), aff'd, 528 U. S. 62 (2000), that the ADA validly abrogates the States' Eleventh Amendment immunity.

We granted certiorari, 529 U. S. 1065 (2000), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court under the ADA.

I

The Eleventh Amendment provides:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States. See Kimel v. Florida Bd. of Regents,528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890). The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. See Kimel, supra, at 73.

We have recognized, however, that Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and "act[s] pursuant to a valid grant of constitutional authority." 528 U. S., at 73. The *364 first of these requirements is not in dispute here. See 42 U. S. C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter"). The question, then, is whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA.

Congress may not, of course, base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I. See Kimel, supra,at 79 ("Under our firmly established precedent then, if the [Age Discrimination in Employment Act of 1967] rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers"); Seminole Tribe, supra, at 72-73 ("The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction"); College Savings Bank, supra, at 672; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 636 (1999); Alden v. Maine, 527 U. S. 706, 730-733 (1999). In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), however, we held that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Id., at 456 (citation omitted). As a result, we concluded, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power. See ibid. Our cases have adhered to this proposition. See, e. g., Kimel, supra, at 80. Accordingly, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation.3

*365 Section 1 of the Fourteenth Amendment provides, in relevant part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in § 1 by enacting "appropriate legislation." See City of Boerne v. Flores, 521 U. S. 507, 536 (1997). Congress is not limited to mere legislative repetition of this Court's constitutional jurisprudence. "Rather, Congress' power `to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, supra, at 81; City of Boerne, supra, at 536.

City of Boerne also confirmed, however, the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. Accordingly, § 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520.

II

The first step in applying these now familiar principles is to identify with some precision the scope of the constitutional right at issue. Here, that inquiry requires us to examine the limitations § 1 of the Fourteenth Amendment places upon States' treatment of the disabled. As we did last Term in Kimel, see 528 U. S., at 83, we look to our prior decisions under the Equal Protection Clause dealing with this issue.

*366 In Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), we considered an equal protection challenge to a city ordinance requiring a special use permit for the operation of a group home for the mentally retarded. The specific question before us was whether the Court of Appeals had erred by holding that mental retardation qualified as a "quasi-suspect" classification under our equal protection jurisprudence. Id., at 435. We answered that question in the affirmative, concluding instead that such legislation incurs only the minimum "rational-basis" review applicable to general social and economic legislation.4 Id., at 446. In a statement that today seems quite prescient, we explained that

"if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so." Id., at 445-446.

Under rational-basis review, where a group possesses "distinguishing characteristics relevant to interests the State has the authority to implement," a State's decision *367 to act on the basis of those differences does not give rise to a constitutional violation. Id., at 441. "Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe, 509 U. S. 312, 320 (1993) (citing Nordlinger v. Hahn, 505 U. S. 1 (1992); New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) ). Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative "`any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Heller, supra, at 320 (quoting FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993)).

Justice Breyer suggests that Cleburne stands for the broad proposition that state decisionmaking reflecting "negative attitudes" or "fear" necessarily runs afoul of the Fourteenth Amendment. See post, at 382 (dissenting opinion) (quoting Cleburne,473 U. S., at 448). Although such biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make. As we noted in Cleburne: "[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently . . . ." Id., at 448 (emphases added). This language, read in context, simply states the unremarkable and widely acknowledged tenet of this Court's equal protection jurisprudence that state action subject to rational-basis scrutiny does not violate the Fourteenth Amendment when it "rationally furthers the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (1976) (per curiam).

Thus, the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly— *368and perhaps hardheartedly—hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.5

III

Once we have determined the metes and bounds of the constitutional right in question, we examine whether Congress identified a history and pattern of unconstitutional employment discrimination by the States against the disabled. Just as § 1 of the Fourteenth Amendment applies only to actions committed "under color of state law," Congress' § 5 authority is appropriately exercised only in response to state transgressions. See Florida Prepaid, 527 U. S., at 640 ("It is this conduct then—unremedied patent infringement by the States—that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act"); Kimel, 528 U. S., at 89 ("Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation"). The legislative record of the ADA, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.

Respondents contend that the inquiry as to unconstitutional discrimination should extend not only to States themselves, but to units of local governments, such as cities and counties. All of these, they say, are "state actors" for *369 purposes of the Fourteenth Amendment. Brief for Respondents 8. This is quite true, but the Eleventh Amendment does not extend its immunity to units of local government. See Lincoln County v. Luning, 133 U. S. 529, 530 (1890). These entities are subject to private claims for damages under the ADA without Congress' ever having to rely on § 5 of the Fourteenth Amendment to render them so. It would make no sense to consider constitutional violations on their part, as well as by the States themselves, when only the States are the beneficiaries of the Eleventh Amendment.

Congress made a general finding in the ADA that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U. S. C. § 12101(a)(2). The record assembled by Congress includes many instances to support such a finding. But the great majority of these incidents do not deal with the activities of States.

Respondents in their brief cite half a dozen examples from the record that did involve States. A department head at the University of North Carolina refused to hire an applicant for the position of health administrator because he was blind; similarly, a student at a state university in South Dakota was denied an opportunity to practice teach because the dean at that time was convinced that blind people could not teach in public schools. A microfilmer at the Kansas Department of Transportation was fired because he had epilepsy; deaf workers at the University of Oklahoma were paid a lower salary than those who could hear. The Indiana State Personnel Office informed a woman with a concealed disability that she should not disclose it if she wished to obtain employment.6

*370 Several of these incidents undoubtedly evidence an unwillingness on the part of state officials to make the sort of accommodations for the disabled required by the ADA. Whether they were irrational under our decision in Cleburne is more debatable, particularly when the incident is described out of context. But even if it were to be determined that each incident upon fuller examination showed unconstitutional action on the part of the State, these incidents taken together fall far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based. See Kimel, supra, at 89-91; City of Boerne, 521 U. S., at 530-531. Congress, in enacting the ADA, found that "some 43,000,000 Americans have one or more physical or mental disabilities." 42 U. S. C. § 12101(a)(1). In 1990, the States alone employed more than 4.5 million people. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 338 (119th ed. 1999) (Table 534). It is telling, we think, that given these large numbers, Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled.

Justice Breyer maintains that Congress applied Title I of the ADA to the States in response to a host of incidents representing unconstitutional state discrimination in employment against persons with disabilities. A close review of the relevant materials, however, undercuts that conclusion. Justice Breyer's Appendix C consists not of legislative findings, but of unexamined, anecdotal accounts of "adverse, disparate treatment by state officials." Post, at 379. Of course, as we have already explained, "adverse, disparate treatment" often does not amount to a constitutional violation where rational-basis scrutiny applies. These accounts, moreover, were submitted not directly to Congress but to the Task Force on the Rights and Empowerment of *371 Americans with Disabilities, which made no findings on the subject of state discrimination in employment.7 See the Task Force's Report entitled From ADA to Empowerment (Oct. 12, 1990). And, had Congress truly understood this information as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act's legislative findings. There is none. See 42 U. S. C. § 12101. Although Justice Breyer would infer from Congress' general conclusions regarding societal discrimination against the disabled that the States had likewise participated in such action, post, at 378, the House and Senate committee reports on the ADA flatly contradict this assertion. After describing the evidence presented to the Senate Committee on Labor and Human Resources and its subcommittee (including the Task Force Report upon which the dissent relies), the Committee's Report reached, among others, the following conclusion: "Discrimination still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and telecommunications." S. Rep. No. 101-116, p. 6 (1989) (emphasis added). The House Committee on Education and Labor, addressing the ADA's employment provisions, reached the same conclusion: "[A]fter extensive review and analysis over a number of Congressional sessions, . . . there exists a compelling need to establish a clear and comprehensive Federal prohibition of discrimination on the basis of disability in the areas of employment in the private sector, public accommodations, public services, transportation, *372 and telecommunications." H. R. Rep. No. 101-485, pt. 2, p. 28 (1990) (emphasis added). Thus, not only is the inference Justice Breyer draws unwarranted, but there is also strong evidence that Congress' failure to mention States in its legislative findings addressing discrimination in employment reflects that body's judgment that no pattern of unconstitutional state action had been documented.

Even were it possible to squeeze out of these examples a pattern of unconstitutional discrimination by the States, the rights and remedies created by the ADA against the States would raise the same sort of concerns as to congruence and proportionality as were found in City of Boerne, supra. For example, whereas it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities, the ADA requires employers to "mak[e] existing facilities used by employees readily accessible to and usable by individuals with disabilities." 42 U. S. C. §§ 12112(5)(B), 12111(9). The ADA does except employers from the "reasonable accommodatio[n]" requirement where the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." § 12112(b)(5)(A). However, even with this exception, the accommodation duty far exceeds what is constitutionally required in that it makes unlawful a range of alternative responses that would be reasonable but would fall short of imposing an "undue burden" upon the employer. The Act also makes it the employer's duty to prove that it would suffer such a burden, instead of requiring (as the Constitution does) that the complaining party negate reasonable bases for the employer's decision. See ibid.

The ADA also forbids "utilizing standards, criteria, or methods of administration" that disparately impact the disabled, without regard to whether such conduct has a rational basis. § 12112(b)(3)(A). Although disparate impact may be *373 relevant evidence of racial discrimination, see Washington v. Davis, 426 U. S. 229, 239 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny. See, e. g., ibid. ("[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact").

The ADA's constitutional shortcomings are apparent when the Act is compared to Congress' efforts in the Voting Rights Act of 1965 to respond to a serious pattern of constitutional violations. In South Carolina v. Katzenbach, 383 U. S. 301 (1966),we considered whether the Voting Rights Act was "appropriate" legislation to enforce the Fifteenth Amendment's protection against racial discrimination in voting. Concluding that it was a valid exercise of Congress' enforcement power under § 2 of the Fifteenth Amendment,8 we noted that "[b]efore enacting the measure, Congress explored with great care the problem of racial discrimination in voting." Id., at 308.

In that Act, Congress documented a marked pattern of unconstitutional action by the States. State officials, Congress found, routinely applied voting tests in order to exclude African-American citizens from registering to vote. See id., at 312. Congress also determined that litigation had proved ineffective and that there persisted an otherwise inexplicable 50-percentage-point gap in the registration of white and African-American voters in some States. See id., at 313. Congress' response was to promulgate in the Voting Rights Act a detailed but limited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' systematic denial of those rights was identified.

*374 The contrast between this kind of evidence, and the evidence that Congress considered in the present case, is stark. Congressional enactment of the ADA represents its judgment that there should be a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U. S. C. § 12101(b)(1). Congress is the final authority as to desirable public policy, but in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne.9 Section 5 does not so broadly enlarge congressional authority. The judgment of the Court of Appeals is therefore

Reversed.

1

 Respondents' complaints in the United States District Court alleged violations of both Title I and Title II of the ADA, and petitioners' "Question Presented" can be read to apply to both sections. See Brief for Petitioners i; Brief for United States I. Though the briefs of the parties discuss both sections in their constitutional arguments, no party has briefed the question whether Title II of the ADA, dealing with the "services, programs, or activities of a public entity," 42 U. S. C. § 12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e. g., Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)). The Courts of Appeals are divided on this issue, compare Zimmerman v. Oregon Dept. of Justice, 170 F. 3d 1169 (CA9 1999), with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F. 3d 816 (CA11 1998). We are not disposed to decide the constitutional issue whether Title II, which has somewhat different remedial provisions from Title I, is appropriate legislation under § 5 of the Fourteenth Amendment when the parties have not favored us with briefing on the statutory question. To the extent the Court granted certiorari on the question whether respondents may sue their state employers for damages under Title II of the ADA, see this Court's Rule 24.1(a), that portion of the writ is dismissed as improvidently granted. See The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 184 (1959).

2

 Garrett raised other claims, but those are not presently before the Court.

3

 It is clear that Congress intended to invoke § 5 as one of its bases for enacting the ADA. See 42 U. S. C. § 12101(b)(4).

4

 Applying the basic principles of rationality review, Cleburne struck down the city ordinance in question. 473 U. S., at 447-450. The Court's reasoning was that the city's purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects. Although the group home for the mentally retarded was required to obtain a special use permit, apartment houses, other multiple-family dwellings, retirement homes, nursing homes, sanitariums, hospitals, boarding houses, fraternity and sorority houses, and dormitories were not subject to the ordinance. See ibid.

5

 It is worth noting that by the time that Congress enacted the ADA in 1990, every State in the Union had enacted such measures. At least one Member of Congress remarked that "this is probably one of the few times where the States are so far out in front of the Federal Government, it's not funny." Hearing on Discrimination Against Cancer Victims and the Handicapped before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, 100th Cong., 1st Sess., 5 (1987). A number of these provisions, however, did not go as far as the ADA did in requiring accommodation.

6

 The record does show that some States, adopting the tenets of the eugenics movement of the early part of this century, required extreme measures such as sterilization of persons suffering from hereditary mental disease. These laws were upheld against constitutional attack 70 years ago in Buck v. Bell, 274 U. S. 200 (1927). But there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.

7

 Only a small fraction of the anecdotes Justice Breyer identifies in his Appendix C relate to state discrimination against the disabled in employment. At most, somewhere around 50 of these allegations describe conduct that could conceivably amount to constitutional violations by the States, and most of them are so general and brief that no firm conclusion can be drawn. The overwhelming majority of these accounts pertain to alleged discrimination by the States in the provision of public services and public accommodations, which areas are addressed in Titles II and III of the ADA.

8

 Section 2 of the Fifteenth Amendment is virtually identical to § 5 of the Fourteenth Amendment.

9

 Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U. S. 123 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. See n. 5, supra.

Justice Kennedy, with whom Justice O'Connor joins, concurring.

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, *375 knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature. There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will.

One of the undoubted achievements of statutes designed to assist those with impairments is that citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. The law works this way because the law can be a teacher. So I do not doubt that the Americans with Disabilities Act of 1990 will be a milestone on the path to a more decent, tolerant, progressive society.

It is a question of quite a different order, however, to say that the States in their official capacities, the States as governmental entities, must be held in violation of the Constitution on the assumption that they embody the misconceived or malicious perceptions of some of their citizens. It is a most serious charge to say a State has engaged in a pattern or practice designed to deny its citizens the equal protection of the laws, particularly where the accusation is based not on hostility but instead on the failure to act or the omission to remedy. States can, and do, stand apart from the citizenry. States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand. The failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause. See Washington v. Davis, 426 U. S. 229 (1976).

For the reasons explained by the Court, an equal protection violation has not been shown with respect to the several States in this case. If the States had been transgressing *376 the Fourteenth Amendment by their mistreatment or lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the courts of the United States extensive litigation and discussion of the constitutional violations. This confirming judicial documentation does not exist. That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation.

It must be noted, moreover, that what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether the States can be subjected to liability in suits brought not by the Federal Government (to which the States have consented, see Alden v. Maine, 527 U. S. 706, 755 (1999)), but by private persons seeking to collect moneys from the state treasury without the consent of the State. The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity. That predicate, for reasons discussed here and in the decision of the Court, has not been established. With these observations, I join the Court's opinion.

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

Reviewing the congressional record as if it were an administrative agency record, the Court holds the statutory provision before us, 42 U. S. C. § 12202, unconstitutional. The Court concludes that Congress assembled insufficient evidence of unconstitutional discrimination, ante, at 370, that Congress improperly attempted to "rewrite" the law we established in Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985), ante, at 374, and that the law is not sufficiently *377 tailored to address unconstitutional discrimination, ante, at 372-373.

Section 5, however, grants Congress the "power to enforce, by appropriate legislation," the Fourteenth Amendment's equal protection guarantee. U. S. Const., Amdt. 14, § 5. As the Court recognizes, state discrimination in employment against persons with disabilities might "`run afoul of the Equal Protection Clause' " where there is no "`rational relationship between the disparity of treatment and some legitimate governmental purpose.' " Ante, at 367 (quoting Heller v. Doe, 509 U. S. 312, 320 (1993)). See also Cleburne v. Cleburne Living Center, Inc., supra, at 440(stating that the Court will sustain a classification if it is "rationally related to a legitimate state interest"). In my view, Congress reasonably could have concluded that the remedy before us constitutes an "appropriate" way to enforce this basic equal protection requirement. And that is all the Constitution requires.

I

The Court says that its primary problem with this statutory provision is one of legislative evidence. It says that "Congress assembled only . . . minimal evidence of unconstitutional state discrimination in employment." Ante, at 370. In fact, Congress compiled a vast legislative record documenting "`massive, society-wide discrimination' " against persons with disabilities. S. Rep. No. 101-116, pp. 8-9 (1989) (quoting testimony of Justin Dart, chairperson of the Task Force on the Rights and Empowerment of Americans with Disabilities). In addition to the information presented at 13 congressional hearings (see Appendix A, infra ), and its own prior experience gathered over 40 years during which it contemplated and enacted considerable similar legislation (see Appendix B, infra ), Congress created a special task force to assess the need for comprehensive legislation. That task force held hearings in every State, attended by more than 30,000 people, including thousands who had experienced discrimination first hand. See From ADA to Empowerment, *378 Task Force on the Rights and Empowerment of Americans with Disabilities 16 (Oct. 12, 1990) (hereinafter Task Force Report). The task force hearings, Congress' own hearings, and an analysis of "census data, national polls, and other studies" led Congress to conclude that "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally." 42 U. S. C. § 12101(a)(6). As to employment, Congress found that "[t]wo-thirds of all disabled Americans between the age of 16 and 64 [were] not working at all," even though a large majority wanted to, and were able to, work productively. S. Rep. No. 101-116, at 9. And Congress found that this discrimination flowed in significant part from "stereotypic assumptions" as well as "purposeful unequal treatment." 42 U. S. C. § 12101(a)(7).

The powerful evidence of discriminatory treatment throughout society in general, including discrimination by private persons and local governments, implicates state governments as well, for state agencies form part of that same larger society. There is no particular reason to believe that they are immune from the "stereotypic assumptions" and pattern of "purposeful unequal treatment" that Congress found prevalent. The Court claims that it "make[s] no sense" to take into consideration constitutional violations committed by local governments. Ante, at 369. But the substantive obligation that the Equal Protection Clause creates applies to state and local governmental entities alike. E. g., Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). Local governments often work closely with, and under the supervision of, state officials, and in general, state and local government employers are similarly situated. Nor is determining whether an apparently "local" entity is entitled to Eleventh Amendment immunity as simple as the majority suggests—it often requires a "`detailed examination of the relevant provisions of [state] law.' " Regents of Univ. of Cal. *379 v. Doe, 519 U. S. 425, 430, n. 6 (1997)(quoting Moor v. County of Alameda, 411 U. S. 693, 719-721 (1973)).

In any event, there is no need to rest solely upon evidence of discrimination by local governments or general societal discrimination. There are roughly 300 examples of discrimination by state governments themselves in the legislative record. See, e. g., Appendix C, infra. I fail to see how this evidence "fall[s] far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based." Ante, at 370.

The congressionally appointed task force collected numerous specific examples, provided by persons with disabilities themselves, of adverse, disparate treatment by state officials. They reveal, not what the Court describes as "half a dozen" instances of discrimination, ante, at 369, but hundreds of instances of adverse treatment at the hands of state officials— instances in which a person with a disability found it impossible to obtain a state job, to retain state employment, to use the public transportation that was readily available to others in order to get to work, or to obtain a public education, which is often a prerequisite to obtaining employment. State-imposed barriers also frequently made it difficult or impossible for people to vote, to enter a public building, to access important government services, such as calling for emergency assistance, and to find a place to live due to a pattern of irrational zoning decisions similar to the discrimination that we held unconstitutional in Cleburne, 473 U. S., at 448. See Appendix C, infra.

As the Court notes, those who presented instances of discrimination rarely provided additional, independent evidence sufficient to prove in court that, in each instance, the discrimination they suffered lacked justification from a judicial standpoint. Ante, at 370 (stating that instances of discrimination are "described out of context"). Perhaps this explains the Court's view that there is "minimal evidence of unconstitutional state discrimination." Ibid. But a legislature *380 is not a court of law. And Congress, unlike courts, must, and does, routinely draw general conclusions—for example, of likely motive or of likely relationship to legitimate need—from anecdotal and opinion-based evidence of this kind, particularly when the evidence lacks strong refutation. See Task Force Report 16, 20 (task force "met many times with significant representatives of groups opposed to [the] ADA," and as to the general public, although the task force received "about 2,000 letters" in support of the ADA, there was only "one letter in opposition"); S. Rep. No. 101-116, at 10 (summarizing testimony that many reasonable accommodations cost "less than $50," and the expense of others, such as hiring employees who can interpret for the deaf, is "frequently exaggerated"). In reviewing § 5 legislation, we have never required the sort of extensive investigation of each piece of evidence that the Court appears to contemplate. Compare ante, at 370-371, with Katzenbach v. Morgan, 384 U. S. 641, 652-656 (1966) (asking whether Congress' likely conclusions were reasonable, not whether there was adequate evidentiary support in the record). Nor has the Court traditionally required Congress to make findings as to state discrimination, or to break down the record evidence, category by category. Compare ante, at 371-372 (noting statements in two congressional Reports that mentioned state discrimination in public services and transportation but not in employment), with Morgan, supra, at 654 (considering what Congress "might" have concluded); 384 U. S., at 652 (holding that likely discrimination against Puerto Ricans in areas other than voting supported statute abolishing literacy test as qualification for voting).

Regardless, Congress expressly found substantial unjustified discrimination against persons with disabilities. 42 U. S. C. § 12101(9) (finding a pattern of "unnecessary discrimination and prejudice" that "costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity" (emphasis added)). See also 2 Legislative History of the Americans with Disabilities *381 Act (Leg. Hist.) (Committee Print compiled for the House Committee on Education and Labor), Ser. No. 102—B, p. 1620 (1990) (testimony of Arlene B. Mayerson) (describing "unjustifiable and discriminatory loss of job opportunities"); id., at 1623 (citing study showing "`strong evidence that employers' fears of low performance among disabled workers are unjustified' "). Moreover, it found that such discrimination typically reflects "stereotypic assumptions" or "purposeful unequal treatment." 42 U. S. C. § 12101(7). See also 2 Leg. Hist. 1622 (testimony of Arlene B. Mayerson) ("Outmoded stereotypes whether manifested in medical or other job `requirements' that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified"). In making these findings, Congress followed our decision in Cleburne, which established that not only discrimination against persons with disabilities that rests upon "`a bare . . . desire to harm a politically unpopular group,' " 473 U. S., at 447 (quoting Department of Agriculture v. Moreno,413 U. S. 528, 534 (1973) (omission in Cleburne )), violates the Fourteenth Amendment, but also discrimination that rests solely upon "negative attitude[s]," "fea[r]," 473 U. S., at 448, or "irrational prejudice," id., at 450. Adverse treatment that rests upon such motives is unjustified discrimination in Cleburne' s terms.

The evidence in the legislative record bears out Congress' finding that the adverse treatment of persons with disabilities was often arbitrary or invidious in this sense, and thus unjustified. For example, one study that was before Congress revealed that "most . . . governmental agencies in [one State] discriminated in hiring against job applicants for an average period of five years after treatment for cancer," based in part on coworkers' misguided belief that "cancer is contagious." 2 Leg. Hist. 1619-1620 (testimony of Arlene B. Mayerson). A school inexplicably refused to exempt a deaf teacher, who taught at a school for the deaf, from a *382 "listening skills" requirement. Government's Lodging 1503. A State refused to hire a blind employee as director of an agency for the blind—even though he was the most qualified applicant. Id., at 974. Certain state agencies apparently had general policies against hiring or promoting persons with disabilities. Id., at 1159, 1577. A zoo turned away children with Downs Syndrome "because [the zookeeper] feared they would upset the chimpanzees." S. Rep. No. 101— 116, at 7. There were reports of numerous zoning decisions based upon "negative attitudes" or "fear," Cleburne, supra, at 448, such as a zoning board that denied a permit for an obviously pretextual reason after hearing arguments that a facility would house "`deviants' " who needed "`room to roam,' " Government's Lodging 1068. A complete listing of the hundreds of examples of discrimination by state and local governments that were submitted to the task force is set forth in Appendix C, infra.Congress could have reasonably believed that these examples represented signs of a widespread problem of unconstitutional discrimination.

II

The Court's failure to find sufficient evidentiary support may well rest upon its decision to hold Congress to a strict, judicially created evidentiary standard, particularly in respect to lack of justification. Justice Kennedy's empirical conclusion—which rejects that of Congress—rests heavily upon his failure to find "extensive litigation and discussion of the constitutional violations," in "the courts of the United States." Ante, at 376 (concurring opinion) (emphasis added). And the Court itself points out that, when economic or social legislation is challenged in court as irrational, hence unconstitutional, the "burden is upon the challenging party to negative any reasonably conceivable state of facts that could provide a rational basis for the classification." Ante, at 367 (internal quotation marks omitted). Or as Justice Brandeis, writing for the Court, put the matter many years ago, "`if any state of facts reasonably can be conceived that *383 would sustain' " challenged legislation, then "`there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing . . . that the action is arbitrary.' " Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185 (1935) (quoting Borden's Farm Products Co. v. Baldwin, 293 U. S. 194, 209 (1934)). Imposing this special "burden" upon Congress, the Court fails to find in the legislative record sufficient indication that Congress has "negative[d]" the presumption that state action is rationally related to a legitimate objective. Ante, at 367.

The problem with the Court's approach is that neither the "burden of proof" that favors States nor any other rule of restraint applicable to judges applies to Congress when it exercises its § 5 power. "Limitations stemming from the nature of the judicial process . . . have no application to Congress." Oregon v. Mitchell, 400 U. S. 112, 248 (1970) (Brennan, White, and Marshall, JJ., concurring in part and dissenting in part). Rational-basis review—with its presumptions favoring constitutionality—is "a paradigm of judicial restraint." FCC v. Beach Communications, Inc., 508 U. S. 307, 314 (1993) (emphasis added). And the Congress of the United States is not a lower court.

Indeed, the Court in Cleburne drew this very institutional distinction. We emphasized that "courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices." 473 U. S., at 441. Our invocation of judicial deference and respect for Congress was based on the fact that "[§ ]5 of the [Fourteenth] Amendment empowers Congress to enforce [the equal protection] mandate." Id.,at 439 (emphasis added). Indeed, we made clear that the absence of a contrary congressional finding was critical to our decision to apply mere rational-basis review to disability discrimination claims—a "congressional direction" to apply a more stringent standard would have been "controlling." Ibid. See also Washingtonv. Davis, 426 U. S. 229, 248 *384 (1976) (refusing to invalidate a law based on the Equal Protection Clause because a disparate-impact standard "should await legislative prescription"). Cf. Mitchell, supra, at 284 (Stewart, J., concurring in part and dissenting in part) ("Congress may paint with a much broader brush than may this Court, which must confine itself to the judicial function of deciding individual cases and controversies upon individual records"). In short, the Court's claim that "to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court in Cleburne, " ante, at 374, is repudiated by Cleburne itself.

There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its § 5 authority, to adopt rules or presumptions that reflect a court's institutional limitations. Unlike courts, Congress can readily gather facts from across the Nation, assess the magnitude of a problem, and more easily find an appropriate remedy. Cf. Cleburne, supra, at 442-443 (addressing the problems of the "large and diversified group" of persons with disabilities "is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary"). Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent, refusals to accommodate a disability amount to behavior that is callous or unreasonable to the point of lacking constitutional justification. Unlike judges, Members of Congress can directly obtain information from constituents who have firsthand experience with discrimination and related issues.

Moreover, unlike judges, Members of Congress are elected. When the Court has applied the majority's burden of proof rule, it has explained that we, i. e., the courts, do not "`sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations.' " Heller, 509 U. S., at 319 *385 (quoting New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam) ). To apply a rule designed to restrict courts as if it restricted Congress' legislative power is to stand the underlying principle—a principle of judicial restraint— on its head. But without the use of this burden of proof rule or some other unusually stringent standard of review, it is difficult to see how the Court can find the legislative record here inadequate. Read with a reasonably favorable eye, the record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment. And Congress could have found, in a significant number of instances, that this treatment violated the substantive principles of justification—shorn of their judicial restraint-related presumptions—that this Court recognized in Cleburne.

III

The Court argues in the alternative that the statute's damages remedy is not "congruent" with and "proportional" to the equal protection problem that Congress found. Ante, at 374 (citing City of Boerne v. Flores, 521 U. S. 507, 520 (1997)). The Court suggests that the Act's "reasonable accommodation" requirement, 42 U. S. C. § 12112(b)(5)(A), and disparate-impact standard, § 12112(b)(3)(A), "far excee[d] what is constitutionally required." Ante, at 372. But we have upheld disparate-impact standards in contexts where they were not "constitutionally required." Compare Griggs v. Duke Power Co., 401 U. S. 424, 432 (1971), with Washington, supra, at 239, and City of Rome v. United States, 446 U. S. 156, 172-173 (1980), with Mobile v. Bolden, 446 U. S. 55, 62 (1980) (plurality opinion).

And what is wrong with a remedy that, in response to unreasonable employer behavior, requires an employer to make accommodations that are reasonable? Of course, what is "reasonable" in the statutory sense and what is "unreasonable" in the constitutional sense might differ. In other words, the requirement may exceed what is necessary to *386 avoid a constitutional violation. But it is just that power— the power to require more than the minimum—that § 5 grants to Congress, as this Court has repeatedly confirmed. As long ago as 1880, the Court wrote that § 5 "brought within the domain of congressional power" whatever "tends to enforce submission" to its "prohibitions" and "to secure to all persons . . . the equal protection of the laws." Ex parte Virginia, 100 U. S. 339, 346 (1880). More recently, the Court added that § 5's "draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18." Morgan, 384 U. S., at 650 (citing McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)).

In keeping with these principles, the Court has said that "[i]t is not for us to review the congressional resolution of . . . the various conflicting considerations—the risk or pervasiveness of the discrimination in governmental services . . . , the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected." 384 U. S., at 653. "It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did." Ibid.See also South Carolina v. Katzenbach, 383 U. S. 301, 324 (1966) (interpreting the similarly worded Enforcement Clause of the Fifteenth Amendment to permit Congress to use "any rational means to effectuate the constitutional prohibition"). Nothing in the words "reasonable accommodation" suggests that the requirement has no "tend[ency] to enforce" the Equal Protection Clause, Ex parte Virginia, supra, at 346, that it is an irrational way to achieve the objective, Katzenbach, supra, at 324, that it would fall outside the scope of the Necessary and Proper Clause, Morgan, supra, at 650, or that it somehow otherwise exceeds the bounds of the "appropriate," U. S. Const., Amdt. 14, § 5.

The Court's more recent cases have professed to follow the longstanding principle of deference to Congress. See Kimel *387 v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) ("Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment." Rather, Congress can prohibit a "somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text"); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999) ("`Congress must have wide latitude' ") (quoting City of Boerne, supra, at 519-520); City of Boerne, supra, at 528 (reaffirming Morgan ); 521 U. S., at 536 (Congress' "conclusions are entitled to much deference"). And even today, the Court purports to apply, not to depart from, these standards. Ante, at 365. But the Court's analysis and ultimate conclusion deprive its declarations of practical significance. The Court `sounds the word of promise to the ear but breaks it to the hope.'

IV

The Court's harsh review of Congress' use of its § 5 power is reminiscent of the similar (now-discredited) limitation that it once imposed upon Congress' Commerce Clause power. Compare Carter v. Carter Coal Co., 298 U. S. 238 (1936), with United States v. Darby, 312 U. S. 100, 123 (1941) (rejecting Carter Coal' s rationale). I could understand the legal basis for such review were we judging a statute that discriminated against those of a particular race or gender, see United States v. Virginia, 518 U. S. 515 (1996), or a statute that threatened a basic constitutionally protected liberty such as free speech, see Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); see also Post & Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel,110 Yale L. J. 441, 477 (2000) (stating that the Court's recent review of § 5 legislation appears to approach strict scrutiny); 1 L. Tribe, American Constitutional Law § 5-16, p. 959 (3d ed. 2000) (same). The legislation before us, however, does not discriminate against anyone, nor does it pose any threat to basic liberty. And it is difficult *388 to understand why the Court, which applies "minimum `rational-basis' review" to statutes that burden persons with disabilities, ante, at 366, subjects to far stricter scrutiny a statute that seeks to help those same individuals.

I recognize nonetheless that this statute imposes a burden upon States in that it removes their Eleventh Amendment protection from suit, thereby subjecting them to potential monetary liability. Rules for interpreting § 5 that would provide States with special protection, however, run counter to the very object of the Fourteenth Amendment. By its terms, that Amendment prohibits States from denying their citizens equal protection of the laws. U. S. Const., Amdt. 14, § 1. Hence "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments `by appropriate legislation.' Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome,446 U. S., at 179. See also Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976); Ex parte Virginia, supra, at 345. And, ironically, the greater the obstacle the Eleventh Amendment poses to the creation by Congress of the kind of remedy at issue here—the decentralized remedy of private damages actions—the more Congress, seeking to cure important national problems, such as the problem of disability discrimination before us, will have to rely on more uniform remedies, such as federal standards and court injunctions, 42 U. S. C. § 12188(a)(2), which are sometimes draconian and typically more intrusive. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 704-705 (1999) (Breyer, J., dissenting). Cf. ante, at 374, n. 9. For these reasons, I doubt that today's decision serves any constitutionally based federalism interest.

The Court, through its evidentiary demands, its nondeferential review, and its failure to distinguish between judicial and legislative constitutional competencies, improperly invades a power that the Constitution assigns to Congress. *389Morgan, 384 U. S., at 648, n. 7 (The "sponsors and supporters of the [Fourteenth] Amendment were primarily interested in augmenting the power of Congress"). Its decision saps § 5 of independent force, effectively "confin[ing] the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch [is] prepared to adjudge unconstitutional." Id., at 648-649. Whether the Commerce Clause does or does not enable Congress to enact this provision, see, e. g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100-185 (1996) (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting); College Savings Bank, supra, at 699-700 (Breyer, J., dissenting), in my view, § 5 gives Congress the necessary authority.

For the reasons stated, I respectfully dissent.

APPENDIX A TO OPINION OF BREYER, J.

Congressional hearings on the Americans with Disabilities Act

Americans with Disabilities Act of 1989: Hearings on H. R. 2273 before the House Committee on the Judiciary and the Subcommittee on Civil and Constitutional Rights, 101st Cong., 1st Sess. (1989).

Americans with Disabilities Act: Hearing on H. R. 2273 and S. 933 before the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990). Americans with Disabilities Act: Hearings on H. R. 2273 before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation, 101st Cong., 1st Sess. (1990).

Americans with Disabilities: Telecommunications Relay Services, Hearing on Title V of H. R. 2273 before the Subcommittee on Telecommunications and Finance of the House Committee on Energy and Commerce, 101st Cong., 1st Sess. (1990).

Americans with Disabilities Act of 1989: Hearing on H. R. 2273 before the Subcommittee on Select Education of the *390 House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).

Field Hearing on Americans with Disabilities Act: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 101st Cong., 1st Sess. (1989).

Hearing on H. R. 2273, The Americans with Disabilities Act of 1989: Joint Hearing before the Subcommittee on Select Education and Employment Opportunities of the House Committee on Education and Labor, 101st Cong., 1st Sess. (July 18 & Sept. 13, 1989) (two hearings). Oversight Hearing on H. R. 4498, Americans with Disabilities Act of 1988: Hearing before the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).

Americans with Disabilities Act: Hearing before the House Committee on Small Business, 101st Cong., 2d Sess. (1990); Americans with Disabilities Act of 1989: Hearings on S. 933 before the Senate Committee on Labor and Human Resources and the Subcommittee on the Handicapped, 101st Cong., 1st Sess. (1989) (May 1989 Hearings). Americans with Disabilities Act of 1988: Joint Hearing on S. 2345 before the Subcommittee on the Handicapped of the Senate Committee on Labor and Human Resources and the Subcommittee on Select Education of the House Committee on Education and Labor, 100th Cong., 2d Sess. (1989).

APPENDIX B TO OPINION OF BREYER, J.

Disability discrimination laws enacted by Congress prior to the Americans with Disabilities Act

Act of June 10, 1948, ch. 434, 62 Stat. 351 Architectural Barriers Act of 1968, 42 U. S. C. § 4151 et seq. Rehabilitation Act of 1973, 29 U. S. C. § 701 et seq. *391Education of the Handicapped Act, Pub. L. 91-230, Title VI, 84 Stat. 175 (reenacted in 1990 as the Individuals with Disabilities Education Act, 20 U. S. C. § 1400 et seq. ) Developmental Disabilities Assistance and Bill of Rights Act, 42 U. S. C. § 6000 et seq. Voting Accessibility for the Elderly and Handicapped Act, 42 U. S. C. § 1973ee et seq. Air Carrier Access Act of 1986, 49 U. S. C. § 41705 Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U. S. C. § 10801 et seq. Fair Housing Amendments Act of 1988, 42 U. S. C. § 3604.

APPENDIX C TO OPINION OF BREYER, J.

Submissions made by individuals to the Task Force on Rights and Empowerment of Americans with Disabilities. See the Government's Lodging (available in Clerk of Court's case file).

ALABAMA

Page No.

00002    discrimination against the mentally ill in city zoning
         process

00003    inaccessible exercise equipment at University   of
         Alabama

00004    school failed to train teachers how to work with
         students with learning disabilities

00005    courts failed to provide interpretive services for
         deaf people

00006    lack of accessible police and court services for deaf
         people

00007    inaccessible public transportation

00008    child denied public education because of cerebral
         palsy

00009    inaccessible public transportation, which prevented
         persons with disabilities from getting to work

00010    inaccessible public buildings and services; 
inaccessible transportation
00011    inaccessible public schools; inaccessible public transportation
00013    inaccessible public schools; inaccessible public transportation
00014    failure to enforce building codes requiring access for          
persons with disabilities
00015    inaccessible courthouse
00017    lack of instructions for use of voting machine by          
blind people; inaccessible restrooms in newly renovated State House
00021    inaccessible public transportation
00023    inaccessible public transportation
00024    failure to enforce state and local laws protecting persons with disabilities
00025    schools failed to provide an adequate education for          
children with disabilities
00026    inaccessible public transportation
00027    man denied vocational rehabilitation services based on          
his cerebral palsy; inaccessible public transportation
00031    vocational rehabilitation agency failed to provide          
services for schizophrenics; zoning discrimination against group homes
00032    school failed to provide an adequate education
00033    school failed to provide an adequate education
ALASKA
Page No.
00038    school placed child with cerebral palsy in special education classes
00041    inaccessible restrooms in state legislature information office
00042    inaccessible areas at new Alaska Performing Arts Center

00044    inaccessible public transportation, which prevented
         persons with disabilities from getting to work

00046    lack of curb cuts in sidewalks near apartment building
for persons with disabilities

00048    child erroneously placed in special education classes

00049    inaccessible new performing arts center

00050    Alaska Psychiatric Institute failed to provide interpretive
services for deaf patients

00052    state and local agencies disregarded laws requiring
         accessibility

00055    jail failed to provide person with disability medical
         treatment

00056    inaccessible government buildings in Seward

00057    inaccessible public transportation

00058    city failed to train employees how to communicate
         with people with hearing impairments

00059    segregated seating and inaccessibility at new performing
arts center

00061    inaccessibility of State Ferry Columbia and Alaska
         Railroad; denial of job interview because person was
         in a wheelchair

00062    inaccessible new performing arts center

00063    person using a respirator denied access to Alaska
         State Division of Medical Assistance

00065    inaccessible city hall

00067    school district retaliated against teacher for asking
         to be assigned to an accessible classroom

00069    inaccessible public transportation

00070    lack of curb cuts; inaccessible public transportation

00071    state agencies failed to provide interpretive services
         for deaf people

00072    department of motor vehicles failed to provide interpretive
services

00073    inaccessibility of Seward City Hall and other state
         and local buildings

00075    state university failed to assist in covering expense of 
interpretive services for deaf graduate student
00076    inaccessible public buildings
00077    inaccessible public school
ARIZONA
Page No.
00090    survey showing inaccessibility problems in city of          
Phoenix's public services
00110    inaccessible public transportation
00112    inaccessible restrooms at state recreation areas
00116    department of motor vehicles failed to provide visual          
signs or other assistance for people with hearing impairments
00117    person with disability denied police officer job
00119    Arizona Department of Economic Security took 3          
to 4 years to fix unsafe van lift
00121    county paratransit refused to provide transportation          
to college
00124    department of motor vehicles placed restrictions on          
driver's license because of deafness
00125    teacher with hearing impairment denied numerous          
jobs
00127    department of motor vehicles failed to assist deaf          
people
00129    inaccessible entrance, restroom, water fountain, and          
office at building leased by State
00130    woman injured trying to use inaccessible restroom at          
roadside rest stop; lack of curb cuts
00131    inaccessible social service agencies
ARKANSAS
Page No.
00136    public school failed to enforce accommodations for student

00138    public school teacher refused to allow student with
         disability to use authorized calculator

00139    state university failed to inform student with hearing
         impairment about activities and rules

00140    lack of curb cuts

00141    inaccessible public transportation

00143    inaccessible office area at public housing for persons
         with disabilities

00144    inaccessible public transportation

00145    inaccessible state office of human services; state
         agencies failed to hire persons with disabilities

00146    failure to enforce handicapped parking law

00147    school erroneously placed child with mobility impairment
in special education classes

00149    public schools failed to provide interpretive services
         for deaf people

00150    inaccessible public transportation

00153    person with disability forced to resign employment
         because of architectural barriers

00154    public school held meetings and conferences at inaccessible
locations

00155    physical barriers prevented citizens from voting

00156    rehabilitation services failed to assist people with all
         kinds of disabilities

00159    inaccessible city and county buildings

00161    human services office relocated to inaccessible
         building

00163    lack of curb cuts

CALIFORNIA

Page No.

00166    inaccessible public recreation sites

00168    California Relay System failed to provide telephone
         access to other States for deaf people

00180    public transit failed to provide visual signs for deaf          
people
00181    inaccessible public transportation
00202    California Childrens Services refused to help with         
 cost of caring for child with head injury at home
00206    inaccessible county buildings
00208    deaf people denied access to state agencies that          
lacked TDD's
00210    deaf people denied access to state agencies that          
lacked TDD's
00211    public transit failed to provide visual signs for deaf people
00212    public transit failed to provide visual signs for deaf people
00213    limited out-of-state telephone relay services
00214    inaccessible public transportation limited access to community college
00215    inaccessible public transportation
00218    deaf people denied access to state agencies that lacked TDD's
00219    state mental health services failed to provide access for deaf people
00220    government failed to provide interpretive services  for deaf people
00221    inaccessible public transportation; lack of curb cuts
00222    inaccessible public transportation
00223    inaccessible airport; inaccessible public transportation
00224    California Relay Service failed to enable deaf 
people to make interstate calls
00225    California Relay Service failed to enable deaf 
people to make interstate calls
00226    inaccessible public transportation; inaccessible 
restrooms in public buildings

00227    University of California attempted to terminate employees
with disabilities for taking medical leave

00231    state agencies failed to provide TDD's

00232    person denied opportunity to serve on jury because
         county failed to provide interpretive services for
         deaf people

00236    public school district failed to provide TTD for deaf
         parents

00237    California Relay Service failed to enable deaf people
         to make interstate calls

00240    lack of curb cuts; inaccessible public transportation

00241    inaccessible public transportation

00244    inaccessible public transportation

00245    California Civil Service Exam held at high school
         with inaccessible restrooms

00246    inaccessible restrooms in county administration
         building; lack of curb cuts

00247    inaccessible public transportation prevented persons
         with disabilities from getting to work; State failed to
         enforce laws requiring accessibility

00248    inaccessible public transportation

00249    California Relay Service failed to enable deaf people
         to make interstate calls

00250    inaccessible public transportation

00252    inaccessible public transportation

00253    inaccessible public transportation

00254    inaccessible county courthouse; street signals too fast
         for safe crossing by wheelchair

00255    public functions failed to provide interpretive services
for deaf people

00258    deaf people denied access to state agencies that
         lacked TDD's

00261    California Basic Educational Skills Test discriminated 
against deaf adults who wanted to become teachers of deaf students
00262    department of motor vehicles required doctors to report 
patients with seizure disorders and revoked such patients licenses, 
but did not require reporting of other conditions that could cause erratic driving
COLORADO
Page No.
00266    person in wheelchair passed by five bus drivers, all of 
whom claimed that lifts were broken
00267    lack of curb cuts and ramps; inaccessible public transportation
00268    inaccessible public transportation
00269    inaccessible public transportation
00270    persons with disabilities placed in segregated public housing
00271    inaccessible public transportation
00272    lack of curb cuts forced person in wheelchair to use street
00273    inaccessible county courthouse
00274    inaccessible public transportation
00275    inaccessible public transportation in small cities; public 
schools failed to assist students with disabilities
00276    inaccessible public transportation; inaccessible 
public facilities and recreation sites
00277    political parties held caucuses at inaccessible private home
00280    children with developmental disabilities required to attend 
segregated schools
00281    public school system refused to transfer student with          
disabilities from special to regular school until she brought suit

00283    vocational rehabilitation agency refused to take referrals
from psychiatric halfway house; person denied
drivers license in Virginia because of mental
         illness

CONNECTICUT

Page No.

00285    public school inaccessible to parent with disability

00289    state university denied renewal of contract for graduate
assistantship because of age and disability

DELAWARE

Page No.

00301    inaccessible public high school; inaccessible public
         transportation

00302    inaccessible public schools; inaccessible public
         transportation

00303    inaccessible voting machines; inadequate handicapped
parking

00308    man with physical disability spent 45 minutes crawling
into polling  place because it was inaccessible to
         wheelchairs

00310    inaccessible public transportation; public ceremony
         held at inaccessible building

00314    failure to enforce laws requiring handicapped parking
spaces, which were usually occupied by police cars

00315    high percentage of children with disabilities placed
         in segregated schools

00317    restrictive zoning limited reintegration of institutionalized
people into community

00319    inaccessible voting system

00323    inaccessible public transportation

00325    inaccessible public transportation made person with
         disability late for work; inaccessible library and other
         public buildings

00329    State refused to fund services for people with mental illness
00330    state transit system provided special vouchers for          
persons with physical disabilities, but not for mentally ill
00331    state criminal justice system failed to provide psychiatric treatment
00333    State kept child with schizophrenia in Delaware          
State Hospital because it lacked services for people who could be released
00335    state labor department's restrictive policies 
prevented persons with disabilities from applying for employment
00336    failure to enforce laws requiring handicapped parking spaces, which were usually occupied by police          cars
00337    public transportation refused to transport person carrying oxygen
00338    staff and patients at Delaware State Hospital 
sexually abused women patients
00343    inaccessible public transportation 
00345    state police interrogated deaf citizens without providing interpretive services
00347    vocational high school sought to transfer student back 
to special segregated school

GEORGIA
Page No.
00362    public colleges failed to provide assistance for students with learning disabilities
00365    University of Georgia students with disabilities faced 
architectural barriers, inaccessible public transportation, 
lack of housing, and failure to enforce handicapped parking laws

00366    inaccessible classrooms at University of Georgia

00367    University of Georgia located its office of handicapped
services in inaccessible second floor office

00370    University of Georgia charged students with learning
disabilities $600 per quarter for services that
         other students with disabilities received at no cost

00371    Learning Disability Adult Clinic at University of
         Georgia charged unreasonable fees

00372    inaccessible public transportation

00374    traffic court failed to provide interpretive services
         for deaf person

HAWAII

Page No.

00444    inaccessible public transportation

00446    inaccessible public transportation

00448    state university failed to enforce handicapped parking
laws

00451    state employee in wheelchair forced to resign job
         because frequently unable to get to office due to
         broken elevator in state building; State Commission
         on the Handicapped refused employees request for
         reasonable accommodation

00452    state university failed to provide blind student with
         timely or adequate books on tape for coursework;
         lack of signs or information for blind people using
         public transit

00455    person with disability denied opportunity to testify
         because department of labor held hearing in an inaccessible
room

00456    state employment agency refused to provide interpretive
services for deaf people

00457    public school put three-year-old deaf child in same
         class as fourth graders

00458    quadriplegic person who had California drivers license denied license by Hawaii
00460    state government office refused to interview 
persons with emotional disorder or history of alcoholism
00461    inaccessible state buildings
00462    person with mobility impairment denied serious consideration 
for state job due to unreliability of accessible public transportation
00463    inaccessible public transportation prevented person 
with disability from getting to work; inaccessible public buildings
00464    lack of curb cuts forced person in wheelchair to use street
00467    elevators in public buildings not marked for blind 
people; bus drivers failed to announce stops for blind people
00468    inaccessible public transportation; bus drivers 
harassed mentally retarded passengers
00469    inaccessible public transportation
00472    state mental health system had restrictive institutional policies
00473    state social service employees placed limits on opportunities 
for persons with disabilities based on stereotypical assumptions
00474    lack of curb cuts and ramps
00475    inaccessible public transportation
00476    inaccessible public transportation
00477    inaccessible public library
00479    denial of certain licenses to persons with mental disabilities
00480    inaccessible restroom in state park; lack of curb cuts
00484    state and local government meetings failed to 
provide interpretive services for deaf people
00485    students with disabilities unable to participate in          
school interscholastic sports

00486    blind people prevented from traveling outside State
         because quarantine laws permitted no exemption for
         their guide dogs

00487    state mental health services unavailable for deaf
         people due to failure to train staff

00488    inaccessible public transportation; inaccessible city
         and county buildings

00490    handi-van refused service to person paralyzed from
         waist down

00491    inaccessible public transportation

00492    state agencies failed to monitor conditions in community
residential facilities for persons with disabilities

00494    inaccessible public transportation

00495    inaccessible public transportation

00496    inadequate assistance for deaf person at court
         appearance

IDAHO

Page No.

00502    inaccessible public transportation

00505    inaccessible public transportation

00506    adult victims of abuse with developmental disabilities
denied equal rights to testify in court

00507    inaccessible public recreation activities

00508    inaccessible public transportation

00509    lack of curb cuts

00510    inaccessible public transportation

00511    city and county failed to provide assistance for deaf
         people at public meetings

00514    inaccessible public transportation

00515    public school failed to provide adequate assistance
         for students with disabilities

00516    inaccessible public transportation

00517    public defenders offices and public meetings failed to provide 
interpretive services for deaf people; police harassed persons with 
disabilities who appeared to be intoxicated
00518    vocational rehabilitation agency lacked TTY service
00521    government agencies lacked staff to assist people with head injuries
00522    inaccessible public transportation
00523    inaccessible public transportation
00524    inaccessible public transportation; inaccessible public buildings
00528    limited access at new county courthouse, library, and city hall
00531    school district refused to hire licensed teacher because of speech impediment
00533    public school failed to provide assistance for deaf student
00537    public school failed to provide interpretive services for deaf student
00540    Idaho lacked statewide telephone relay service for  deaf people
00541    department of employment and department of health          
and welfare lacked telephone access for deaf people
00543    inaccessible restrooms at public high school; student          
in wheelchair denied admission to regular classes

ILLINOIS
Page No.
00546    state system for providing ballots to people unable to enter 
polling place and special bus service caused long wait outside in cold weather 
00548    schools that mainstream deaf children refused to hire deaf teacher
00553    government failed to provide interpretive services          
for deaf people at public hearing on school budget

00554    lack of curb cuts; inaccessible public transportation

00559    department of rehabilitation limited services to persons
with disabilities by threatening placement in
         nursing home

00569    police stations lacked TTY service

00572    deaf people arrested and held in jail overnight without
explanation because of failure to provide interpretive
services

00573    inaccessible polling place

00574    inaccessible public schools prevented attendance at
         PTA meetings

00575    inaccessible public transportation

00576    inaccessible public transportation

00578    lack of curb cuts and ramps for wheelchairs

00579    most state housing agencies lacked telecommunications
devices or interpretive services for deaf people

00581    state and local government agencies lacked telecommunications
devices for deaf people

00583    emergency medical, police, and fire services lacked
         TDD's or personnel trained to receive TDD calls

00585    inaccessible public pools; inaccessible restrooms in
         municipal building

00586    inaccessible public transportation

00587    inaccessible polling place

00588    inaccessible polling place

00589    inaccessible public transportation

00590    inaccessible public transportation

00591    inaccessible library

00592    inaccessible voting system

00594    inaccessible polling place

00595    lack of curb cuts

00596    inaccessible public transportation

00597    inaccessible public transportation

00600    inaccessible public transportation

00603    inaccessible public transportation

00605    lack of curb cuts; inaccessible public buildings; 
inaccessible public transportation; inaccessible polling place

INDIANA
Page No.
00608    state vocational rehabilitation agency refused to help          
person it classified as severely disabled
00609    for five years, state vocational rehabilitation agency          
failed to provide assistance
00612    inadequate curb cuts
00613    inaccessible public transportation
00616    inaccessible public transportation
00618    inadequate curb cuts
00619    inaccessible public transportation; inaccessible public facilities
00621    inaccessible public transportation
00622    government agencies failed to provide interpretive          
services and TTY/TDD's for deaf people
00629    deaf counselors discouraged from applying for jobs          
as rehabilitation counselors for deaf people
00637    staff at state psychiatric facilities abused and physically dragged patients
00644    person with disability dismissed as director of deaf          
unit at Central State Hospital
00651    public meetings held at inaccessible locations
00653    inaccessible polling place
00655    state counselors failed to provide rehabilitation assistance to person with head injury

IOWA
Page No.
00659    person dismissed as city bus operator after seeking          
treatment for mental illness
00664    state commission failed to supply necessary equipment for deaf and blind employee

00665    high school limited opportunities for mentally retarded
student to be integrated

KANSAS

Page No.

00670    Kansas Commission of Civil Rights denied legally
         blind person job as investigator because of limited
ability to drive and refused to allow accommodation
that would have permitted use of public
         transportation

00673    police failed to provide interpretive services after
         arresting deaf man

00676    Kansas Department of Transportation fired person
         because she had epilepsy

00679    state investigator failed to examine employment discrimination
claims

00685    inaccessible public transportation

00695    county failed to assist mentally ill with housing and
         vocational opportunities

00696    damaged sidewalks and poor street lighting posed
         risk to persons with disabilities

00704    inaccessible city-owned arena

KENTUCKY

Page No.

00706    bus driver bypassed person standing at stop with
         guide dog

00709    inaccessible public transportation

00712    department of employment services failed to make
         reasonable accommodations for persons with disabilities


00717    lack of curb cuts; inaccessible public transportation

00720    inaccessible public transportation

00723    state employment service refused to place person in
         wheelchair

00724    inaccessible public buildings

00729    public library, police department, and state university 
library lacked personnel trained to use TTY          devices
00731    state university failed to provide assistance to 
part-time teacher with a disability
00732    State prevented deaf teachers from teaching deaf students 
by requiring courses such as music education
00733    inaccessible public transportation
00736    inaccessible public transportation
00740    Kentucky School for the Deaf preferred hiring hearing teachers rather than deaf teachers
LOUISIANA
Page No.
00743    inaccessible housing for graduate students at Louisiana State University
00745    inaccessible public transportation
00748    police assumed person with coordination problems was drunk
00751    inaccessible public transportation
00752    vocational rehabilitation program failed to provide          
services for person with head injury
00753    inaccessible public transportation prevented persons          
with disabilities from getting to work
00758    inaccessible voting machine
00759    Louisiana Sheriffs Pension and Relief Fund denied          
membership to person with disability
00773    inaccessible public transportation; lack of curb cuts
00776    inaccessible buildings at Louisiana State University

MAINE

Page No.
00778    inadequate sidewalk ramps; failure to enforce handicapped parking laws

00780    failure to enforce state regulations requiring accessibility
in public buildings

00782    town refused request for interpretive services for
         deaf people at town meeting

MARYLAND

Page No.

00785    public transportation unsafe for persons with disabilities


00787    public libraries, state prison, and other state offices
         lacked TDD's

00788    department of human relations failed to provide interpretive
services for deaf people and did not answer
TTY calls

00789    vocational rehabilitation counselors failed to help
         deaf people find jobs

00797    inaccessible public transportation

00798    state hospital refused to provide interpretive services
for deaf people

MASSACHUSETTS

Page No.

00808    Office for Children refused to license blind person as
         day-care assistant

00812    inaccessible courthouse

00813    inaccessible restrooms in state building and state
         armory

00816    state college threatened to terminate employee because
of blindness

00829    Massachusetts Adoption Exchange refused to let
         family with mother who had muscular dystrophy
         adopt child

00835    department of vocational rehabilitation hired able-bodied person 
instead of qualified person in  wheelchair

MICHIGAN
Page No.
00920    person denied admission to University of Michigan 
Medical School because of speech impediment
00921    inaccessible state university campuses
00922    65 percent of voting precincts in Detroit inaccessible
00923    buses with lifts often failed to stop for people in          
wheelchairs or their lifts did not work
00924    state employee threatened with discipline for serving          
on and attending meetings of Equal Employment Opportunity Commission advisory committee
00925    state university stadium lacked accessible restrooms,          
water fountains, and telephones
00926    inaccessible public transportation
00928    school system failed to hire teachers who could communicate with deaf students
00932    state university  denied interpretive services to          
part-time deaf student
00933    public transportation refused to serve persons in          
wheelchairs; public agency refused to provide interpretive services for deaf people
00939    state university had transportation system for students 
with disabilities but not for faculty and staff
00947    state university lacked adequate curb ramps
00950    State denied drivers license to person with epilepsy
00958    inaccessible public recreation facilities
00960    inaccessible government buildings
00961    state university denied sabbatical proposal of faculty          
member with disability
00963    Michigan Rehabilitation Services placed people in          
inappropriate positions

00964    Michigan Rehabilitation Services failed to accommodate
mentally ill persons

00968    inaccessible public transportation

00969    man with disability forced to use girls restroom at
         state job

00970    person with disability terminated from county job
         and banned from future county employment

MINNESOTA

Page No.

00974    person with disability and score of 100 was finalist
         for job as director of agency for the blind, but ablebodied
person with score of 70 was hired

00980    person with cerebral palsy humiliated at interview
         for job with state department of education

MISSISSIPPI

Page No.

00853    inaccessible public transportation

00855    inaccessible beaches, pools, and parks

00984    inaccessible classrooms and library at Mississippi
         School for the Deaf

00985    no state agency to provide or coordinate community
         service programs for deaf adults

00986    inaccessible classrooms at Mississippi School for the
         Deaf

00987    public programs failed to provide interpretive services
for deaf people; government failed to post caution
signs warning drivers of deaf children

00988    inaccessible polling places and voting booths

00989    inaccessible public buildings

00990    courts refused to pay for qualified interpretive services
for deaf people

00992    inaccessible state university building

00993    teacher denied position at public elementary school
         because of need for braces and a cane to walk

00994    lack of curb cuts; inaccessible public school rooms; inaccessible 
public transportation
00996    inaccessible department of motor vehicles
00997    inaccessible public transportation; inaccessible public facilities
00998    inaccessible courthouses
00999    state university instructor refused to teach blind person
01000    inaccessible public transportation
01001    inaccessible polling place; city employee required to          
go outside to get to restroom

MISSOURI
Page No.
01003    lack of curb cuts
01004    inaccessible restrooms in public buildings; lack of          
curb cuts
01006    public schools segregated children with disabilities;          
inaccessible school buildings
01009    inaccessible public transportation and public buildings 
such as post offices, libraries, schools, and polling places
01010    state university tried to discourage blind persons          
chosen field of study
01013    inaccessible public transportation
01015    courthouse failed to provide amplified sound system          
in courtrooms
MONTANA
Page No.
01017    inadequate curb cuts
01022    inadequate curb cuts in downtown area
01023    state agencies refused to make reasonable accommodations to paraplegics seeking employment
01024    inaccessible polling place

01026    person in wheelchair forced to vote in street

01027    inaccessible polling place

NEBRASKA

Page No.

01029    government failed to provide interpretive services
         for deaf people serving on juries, commissions, and
         committees

01031    local school district failed to provide interpretive
         services for deaf child

01034    inaccessible entrance at office of county assistance

NEVADA

Page No.

01038    local government failed to provide assistance for people
with head injuries

01043    inaccessible government buildings and public facilities

01044    person with disability denied access to public transportation
because it took too long to get on and off
         bus

01046    community college refused to provide interpretive
         services for deaf people

01050    city ordinance prevented mentally ill from living in
         residential areas

01051    inaccessible public transportation; inadequate curb
         cuts and ramps

01053    failure to enforce handicapped parking laws

01054    lack of sidewalk and crosswalk accommodations for
         persons in wheelchairs

NEW HAMPSHIRE

Page No.

01057    state agency failed to assist persons with head injuries
despite availability of state surplus funds

01061    vocational rehabilitation counselor tried to cut off          
funds and assistance to person with disability
NEW  JERSEY
Page No.
01067    commission for the blind and visually impaired demoted visually impaired person
01068    zoning commission denied permission to open home for persons with head injuries
01069    architectural barriers on Cumberland County College campus
01072    inadequate curb cuts
NEW  MEXICO
Page No.
01080    state university denied entry into school of social          
work to blind person but admitted partially sighted person with lower grades
01083    New Mexico lacked statewide TDD relay service
01091    prisoners with developmental disabilities subjected          
to longer terms and abused by other prisoners in state correctional system
01092    inaccessible public transportation
01095    University of New Mexico failed to provide assistance for blind student
01097    city and county government offices lacked TDD's
01098    University of New Mexico hospital failed to provide          
interpretive services for deaf patients
01099    University of New Mexico failed to provide interpretive services for deaf students
01100    inaccessible buildings on University of New Mexico campus

NEW YORK

Page No.

01109    state agencies failed to hire persons with disabilities

01114    custodian in public high school denied request of person
with disability to use locked elevator

01119    at state legislature, person in wheelchair had to wait
         45 minutes to use freight elevator

01129    public  village meetings held in second floor meeting
room with no elevator; many polling places
         inaccessible

01130    lack of curb cuts; failure to enforce handicapped parking
laws

01134    inaccessible state parks and public beaches

NORTH CAROLINA

Page No.

01144    public elementary school initially denied admission
         and then charged extra fee for child with Downs
         Syndrome to attend after-school day-care program

01155    blind people told not to participate in regular public
         parks and recreation programs

01158    state agencies, other than services for the blind and
         vocational rehabilitation, employed few persons
         with disabilities

01161    police arrested and jailed deaf person without providing
interpretive services

NORTH DAKOTA

Page No.

01170    person with disability denied access to driver's license
exam because held in inaccessible room

01172    inaccessible polling places

01175    lack of curb cuts; failure to enforce handicapped parking
laws; inaccessible polling places; inaccessible city
         government meetings

01178    failure to enforce handicapped parking laws
01183    inaccessible polling places; inaccessible state and          
local government buildings
01185    government agencies failed to enforce policies regarding hiring 
persons with disabilities; inaccessible polling places; inaccessible public buildings
01186    state and local government failed to hire persons          
with disabilities; inaccessible polling places
01187    failure to enforce handicapped parking laws
01196    person with head-injury disability denied consideration for position 
of election polls inspector

OHIO
Page No.
01215    city failed to trim trees regularly, which posed a          
hazard to blind people
01216    inaccessible state, county, and city buildings
01218    inaccessible social service agency offices; inaccessible          
public transportation
01221    vocational rehabilitation agency denied assistance to          
person with disability
01224    rehabilitation services agency failed to assist paranoid schizophrenic
01229    vocational rehabilitation agency discouraged person          
with disability from being a nurse
01230    persons with disabilities denied jobs because of inaccessible public transportation
01231    blind person denied drivers license though legally          
eligible
01234    inaccessible public transportation; lack of curb cuts
01235    public paratransit system often left passengers          
stranded
01236    vocational rehabilitation agency steered person with          
mental disability to menial job, despite his Ph.D. degree

01239    police failed to provide interpretive services for deaf
         person who was arrested

01241    Cleveland State University lacked wheelchair ramps

01242    inaccessible public transportation

OKLAHOMA

Page No.

01251    Tulsa Housing Authority failed to communicate with
         and provide information to tenants with disabilities

01258    state employment office lacked TDD or workers with
         interpretive skills; state university paid deaf employees
less than hearing employees; state agencies made
         no effort to hire deaf applicants

01265    police officer pointed gun at person with disability
         who could not get out of car quickly

01266    inaccessible public transportation

01269    person with speech impediment denied numerous
         state jobs

01271    inaccessible restrooms at city parks

01275    state government held meeting at hotel with inaccessible
restrooms

01278    person in wheelchair worked at polling  place with
         inaccessible restrooms

01280    inaccessible polling places

01286    qualified blind person who offered to provide own
         driver denied job as state social worker

OREGON

Page No.

01370    blind people unable to access printed material from
         state government

01375    school system barred child with cerebral palsy from
         physical education class and gave her cleaning job
         instead

01377    person with two college degrees and extensive professional 
experience turned down for appropriate state government jobs and 
advised to seek entry level jobs because of his disability
01378    commission for the handicapped lacked funds to enforce laws

PENNSYLVANIA
Page No.
01391    public library had restrictive policy regarding issuance 
of library cards to residents of group homes
01397    government failed to provide interpretive services          
for deaf people at school budget hearing
01399    inaccessible public transportation
01407    inaccessible polling places
01408    inaccessible public transportation
01409    inaccessible polling places
01410    inaccessible polling place
01413    inaccessible public transportation; lack of curb cuts
01421    inaccessible public library
01423    inaccessible automatic ticket dispensers on Pennsylvania Turnpike
01425    bus drivers refused to transport person in wheelchair
01427    inaccessible county offices
01429    lack of curb cuts
01430    GED programs offered at inaccessible public schools;          
bus drivers unwilling or unable to use wheelchair lifts
01432    child unable to enroll in first grade because of inaccessible classroom
01434    lack of curb cuts; inaccessible public transportation
01435    lack of curb cuts in rural areas
01436    inaccessible polling place

01439    unsafe curb cuts

01441    inaccessible state office building

SOUTH CAROLINA

Page No.

01454    government failed to provide 911 emergency service
         for deaf people

01457    state and local agencies, library, and police and fire
         departments lacked TDD's; government failed to provide
interpretive services for deaf people at meetings

SOUTH DAKOTA

Page No.

01466    school district failed to provide adequate services to
         child with disability

01467    traffic light and fire hydrant placed where they posed
         obstacle to blind pedestrians and those in wheelchairs
who needed to use curb cuts

01469    inaccessible polling places

01470    inaccessible public transportation

01472    State failed to hire persons with disabilities without
         giving a reason

01475    criminal court failed to provide interpretive services
         for deaf people

01476    state university denied blind student opportunity to
         practice teach as required for teaching certificate

TEXAS

Page No.

01483    poles obstructed sidewalks; lack of curb cuts; inaccessible
public transportation

01503    state teachers exam required deaf teachers who
         wanted to teach deaf children to pass section on
         speech assessment and listening

01514    medical examination required for renewal of drivers          
license despite unblemished 20-year driving record
01520    inadequate handicapped parking spaces
01521    state vocational rehabilitation agency refused to assist 
college student who chose to major in political science
01522    employee of county human services agency denied 
handicapped parking place
01526    failure to enforce handicapped parking laws
01527    inaccessible state university transportation system
01529    denial of drivers licenses or accommodations to take          
driver's test
01531    inaccessible buildings at state university
01536    state hospital sought to discharge mentally ill boy          
with HIV
01540    special transit system refused to transport man with          
mental retardation though he could not use regular bus
01542    deaf man not permitted to take state cosmetology 
exam with assistance from interpreter
01543    blind man not permitted to take state chiropractic 
exam because he could not read x-rays alone
01549    deaf instructors unable to pass state teachers exam          
for teachers of deaf students that assessed speech  and language skills
01551    inadequate handicapped parking and enforcement
UTAH
Page No.
01554    state rehabilitation service had never hired deaf          
counselor or administrator
01556    child denied admission to public school because first 
grade teacher refused to teach him
01563    public school failed to implement state review panel          
findings regarding accommodation for child with disability

01576    state office for persons with disabilities failed to hire
         such persons; inaccessible public transportation

01577    state government denied persons with disabilities
         upper level management jobs

01580    rehabilitation services agency discriminated against
         employee with reading disability

01581    qualified blind teacher denied job and told that school
         needed teacher who could also coach football, but
         school hired sighted person who was not a coach

01584    inaccessible public transportation

01586    inaccessible government office

01587    public school teacher refused to give child with learning
disability his grades and said he did not belong
         in public school

01592    Utah denied mainstream education to child with
         Down's Syndrome, though child had been mainstreamed
in another State

01595    person with disability involuntarily hospitalized and
         abused by state university hospital

01613    inaccessible public high school facilities

VERMONT

Page No.

01634    zoning board denied use permit for community mental
health center

VIRGINIA

Page No.

01642    student with learning disability misclassified as mentally
retarded and deemed ineligible to take drama
         class at public school

01646    inaccessible buildings at state school for blind and
         deaf youth

01647    failure to enforce handicapped parking laws

01654    inaccessible restrooms in government buildings; failure
to enforce handicapped parking laws

01656    state programs for persons with disabilities failed to          
communicate with deaf people
01660    lack of state institutional care to rehabilitate people          
with head injuries
01663    inaccessible traffic court
01664    inaccessible public transportation
01667    lack of curb cuts
01668    inaccessible public transportation prevented persons          
with disabilities from voting
01671    state and local government failed to provide interpretive 
services for deaf people at meetings
01674    lack of curb cuts outside county courthouse
01675    deaf people denied access to 911 emergency services
01676    inaccessible courthouse
01677    inaccessible public transportation
01678    lack of curb cuts and ramp for access to courthouse
01679    inaccessible county courthouse
01680    inaccessible courthouse and library
01682    inaccessible high school
01683    lack of curb cuts at citys main intersection
01684    person in wheelchair received ticket for obstructing          
street traffic even though sidewalks not accessible
01686    inaccessible transportation on state university          campus
WASHINGTON
Page No.
01690    deaf people required to pay for interpretive services          
in court
01692    state governments lack of TDD deterred deaf people          
from applying for employment
01694    government office lacked TDD and interpretive services for deaf people

01767    inaccessible polling places

01771    blind and deaf people denied equal access to jury
         service

WYOMING

Page No.

01773    State lacked telephone relay system for deaf people

01775    inaccessible state buildings

01777    department of motor vehicles denied drivers license
         to person with epilepsy

01780    inaccessible buildings at state university

01781    zoning board denied permit for group home for persons
with disabilities

01786    person in wheelchair denied marriage license because
         courthouse was inaccessible

01656    state programs for persons with disabilities failed to          
communicate with deaf people
01660    lack of state institutional care to rehabilitate people          
with head injuries
01663    inaccessible traffic court
01664    inaccessible public transportation
01667    lack of curb cuts
01668    inaccessible public transportation prevented persons          
with disabilities from voting
01671    state and local government failed to provide interpretive services for deaf people at meetings
01674    lack of curb cuts outside county courthouse
01675    deaf people denied access to 911 emergency services
01676    inaccessible courthouse
01677    inaccessible public transportation
01678    lack of curb cuts and ramp for access to courthouse
01679    inaccessible county courthouse
01680    inaccessible courthouse and library
01682    inaccessible high school
01683    lack of curb cuts at citys main intersection
01684    person in wheelchair received ticket for obstructing          
street traffic even though sidewalks not accessible
01686    inaccessible transportation on state university          
campus
WASHINGTON 
Page No.
01690    deaf people required to pay for interpretive services          
in court
01692    state governments lack of TDD deterred deaf people          
from applying for employment
01694    government office lacked TDD and interpretive services for deaf people

01767    inaccessible polling places

01771    blind and deaf people denied equal access to jury
         service

WYOMING
Page No.

01773    State lacked telephone relay system for deaf people

01775    inaccessible state buildings

01777    department of motor vehicles denied drivers license
         to person with epilepsy

01780    inaccessible buildings at state university

01781    zoning board denied permit for group home for persons
with disabilities

01786    person in wheelchair denied marriage license because
         courthouse was inaccessible

Otis McDonald, et al., Petitioners, v. City of Chicago, Illinois, et al.

Argued March 2, 2010.

Decided June 28, 2010.

Alan Gura for the petitioners.

Paul D. Clement for the respondents Nat. Rifle Association, Inc., et al. in support of the petitioners.

James A. Feldman for the respondents City of Chicago, Ill.

Stephen P. Halbrook, Fairfax, VA, Counsel for the National Rifle Association of America, Inc., Robert Klein Engler, Dr. Gene Reisinger, Dr. Kathryn Tyler, Van F. Welton, and Brett Benson. Stephen D. Poss, Counsel of Record, Kevin P. Martin, Joshua S. Lipshutz, Goodwin Procter LLP, Boston, MA, Paul D. Clement, King & Spalding, Washington, DC, Counsel for the National Rifle Association of America, Inc.

David G. Sigale, Law Firm of David G. Sigale, P.C., Lisle, Illinois, Alan Gura, Counsel of Record, Alexandria, Virginia for the Seventh Circuit.

Charles M. Dyke, Counsel of Record, Yi-Yi Chang, Nixon Peabody LLP, San Francisco, CA, for the Board of Education of the City of Chicago, Institute of Medicine of Chicago, Wayman African Methodist Episcopal Church of Chicago, Illinois Council Against Handgun Violence, Legal Community Against Violence, Violence Policy Center, States United to Prevent Gun Violence, Freedom States Alliance, Connecticut Against Gun Violence, Maine Citizens Against Gun Violence, Citizens for a Safer Minnesota, Ohio Coalition Against Gun Violence, Wisconsin Anti-Violence Effort Educational Fund, and Gunfreekids.org in Support of Respondents City of Chicago and Village of Oak Park.

James A. Feldman, Special Assistant, Corporation Counsel, Washington, D.C., Mara S. Georges, Corporation Counsel of the City of Chicago, Benna Ruth Solomon, Counsel of Record, Deputy Corporation Counsel, Myriam Zreczny Kasper, Chief Assistant Corporation Counsel, Suzanne M. Loose, Assistant Corporation Counsel, Andrew W. Worseck, Assistant Corporation Counsel, Chicago, Illinois, Counsel for the City of Chicago; Raymond L. Heise, Village Attorney of Oak Park, Oak Park, Illinois, Counsel for the Village of Oak Park, Hans Germann, Ranjit Hakim, Alexandra Shea, Mayer Brown LLP, Chicago, Illinois, for Respondents City of Chicago and Village of Oak Park.

*3021 Syllabus*

Two years ago, in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City's handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners' argument that the ordinances are unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615, and Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812—which were decided in the wake of this Court's interpretation of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394.

Held: The judgment is reversed, and the case is remanded.

567 F.3d 856, reversed and remanded.

Justice ALITO delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, III, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Pp. 3028-3030, 3031-3036, 3036-3044.

(a) Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privileges or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House Cases' narrow interpretation of the Clause should now be rejected. As a secondary argument, they contend that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right. Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any"`civilized'" legal system. If it is possible to imagine a civilized country that does not recognize the right, municipal respondents assert, that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of handguns, they maintain that due process does not preclude such measures. Pp. 3027-3028.

(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, 8 L.Ed. 672, but the constitutional Amendments adopted in the Civil War's after-math fundamentally altered the federal system. Four years after the adoption of the Fourteenth Amendment, this Court *3022 held in the Slaughter-House Cases that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws," 16 Wall., at 79, 21 L.Ed. 394, and that the fundamental rights predating the creation of the Federal Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80. Subsequently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, supra, Presser, supra, and Miller, supra, the decisions on which the Seventh Circuit relied in this case. Pp. 3028-3030.

(c) Whether the Second Amendment right to keep and bear arms applies to the States is considered in light of the Court's precedents applying the Bill of Rights' protections to the States. Pp. 3031-3036.

(1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights protections. See, e.g., Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232. Five features of the approach taken during the ensuing era are noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey, 211 U.S. 78, 99, 29 S.Ct. 14, 53 L.Ed. 97. Second, the Court explained that the only rights due process protected against state infringement were those "of such a nature that they are included in the conception of due process of law." Ibid. Third, some cases during this era "can be seen as having asked ... if a civilized system could be imagined that would not accord the particular protection" asserted therein. Duncan v. Louisiana, 391 U.S. 145, 149, n. 14, 88 S.Ct. 1444, 20 L.Ed.2d 491. Fourth, the Court did not hesitate to hold that a Bill of Rights guarantee failed to meet the test for Due Process Clause protection, finding, e.g., that freedom of speech and press qualified, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357,but the grand jury indictment requirement did not, Hurtado, supra. Finally, even when such a right was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from those provided against abridgment by the Federal Government. Pp. 3031-3032.

(2) Justice Black championed the alternative theory that § 1 of the Fourteenth Amendment totally incorporated all of the Bill of Rights' provisions, see, e.g., Adamson v. California, 332 U.S. 46, 71-72, 67 S.Ct. 1672, 91 L.Ed. 1903 (Black, J., dissenting), but the Court never has embraced that theory. Pp. 3032-3033.

(3) The Court eventually moved in the direction advocated by Justice Black, by adopting a theory of selective incorporation by which the Due Process Clause incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 341, 83 S.Ct. 792, 9 L.Ed.2d 799. These decisions abandoned three of the characteristics of the earlier period. The Court clarified that the governing standard is whether a particular Bill of Rights protection is fundamental to our Nation's particular scheme of ordered liberty and system of justice. Duncan, supra, at 149, n. 14, 88 S.Ct. 1444. The Court eventually held that almost all of the Bill of Rights' guarantees met the requirements for protection under the Due Process Clause. The Court also held that Bill of Rights protections *3023 must "all ... be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Malloy v. Hogan, 378 U.S. 1, 10, 84 S.Ct. 1489, 12 L.Ed.2d 653. Under this approach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Pp. 3034-3036.

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 3036-3044.

(1) The Court must decide whether that right is fundamental to the Nation's scheme of ordered liberty, Duncan, supra, at 149, 88 S.Ct. 1444, 20 L.Ed.2d 491, or, as the Court has said in a related context, whether it is "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is "the central component" of the Second Amendment right. 554 U.S., at 599, 128 S.Ct. 2783, 171 L.Ed.2d 637. Explaining that "the need for defense of self, family, and property is most acute" in the home, id., at 628, the Court found that this right applies to handguns because they are "the most preferred firearm in the nation to `keep' and use for protection of one's home and family," id., at 628-629, 128 S.Ct. 2783. It thus concluded that citizens must be permitted "to use [handguns] for the core lawful purpose of self-defense." Id., at 630, 128 S.Ct. 2783. Heller also clarifies that this right is "deeply rooted in this Nation's history and tradition," Glucksberg, supra, at 721, 117 S.Ct. 2302. Heller explored the right's origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was regarded as fundamental in the sense relevant here. That understanding persisted in the years immediately following the Bill of Rights' ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 3036-3038.

(2) A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty. Pp. 3038-3044.

(i) By the 1850's, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. Abolitionist authors wrote in support of the right, and attempts to disarm "Free-Soilers" in "Bloody Kansas" met with outrage that the constitutional right to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African-Americans, see Heller, supra,at 614-615, 128 S.Ct. 2783. These injustices prompted the 39th Congress to pass the Freedmen's Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contractors Assn., Inc. *3024 v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835. In congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment's ratification confirms that that right was considered fundamental. Pp. 3038-3042.

(ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed § 1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while § 1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause, it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 3042-3044.

Justice ALITO, joined by THE CHIEF JUSTICE, Justice SCALIA, and Justice KENNEDY, concluded, in Parts II-C, IV, and V, that the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right recognized in Heller. Pp. 3030-3031, 3044-3048.

(a) Petitioners argue that the Second Amendment right is one of the "privileges or immunities of citizens of the United States." There is no need to reconsider the Court's interpretation of the Privileges or Immunities Clause in the Slaughter-House Cases because, for many decades, the Court has analyzed the question whether particular rights are protected against state infringement under the Fourteenth Amendment's Due Process Clause. Pp. 3030-3031.

(b) Municipal respondents' remaining arguments are rejected because they are at war with Heller's central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees. Pp. 3044-3048.

(c) The dissents' objections are addressed and rejected. Pp. 3048-3050.

Justice THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recognized in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637, fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment's text and history. The Court is correct in describing the Second Amendment right as "fundamental" to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491,and "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772. But the Fourteenth Amendment's Due Process Clause, which speaks only to "process," cannot impose the type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by § 1 of the Fourteenth Amendment, which provides, inter alia: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." In interpreting this language, it is important to recall that constitutional provisions are "`written to be understood by the voters. '" Heller, 554 *3025 U.S., at 576, 128 S.Ct. 2783. The objective of this inquiry is to discern what "ordinary citizens" at the time of the Fourteenth Amendment's ratification would have understood that Amendment's Privileges or Immunities Clause to mean. Id., at 577. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. Pp. 3026-3044.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, and III, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II-C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion, post, pp. 3050-3058. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, post, pp. 3058-3088. STEVENS, J., filed a dissenting opinion, post, pp. 3088-3120. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined, post, pp. 3120-3136.

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*3026 Justice ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, II-D, III-A, and III-B, in which THE CHIEF JUSTICE, Justice SCALIA, Justice KENNEDY, and Justice THOMAS join, and an opinion with respect to Parts II-C, IV, and V, in which THE CHIEF JUSTICE, Justice SCALIA, and Justice KENNEDY join.

Two years ago, in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia's, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

I

Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago's firearms laws. A City ordinance provides that "[n]o person shall... possess ... any firearm unless such person is the holder of a valid registration certificate for such firearm." Chicago, Ill., Municipal Code § 8-20-040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. § 8-20-050(c). Like Chicago, Oak Park makes it "unlawful for any person to possess ... any firearm," a term that includes "pistols, revolvers, guns and small arms ... commonly known as handguns." Oak Park, Ill., Municipal Code §§ 27-2-1 (2007), 27-1-1 (2009).

Chicago enacted its handgun ban to protect its residents "from the loss of property and injury or death from firearms." See Chicago, Ill., Journal of Proceedings of the City Council, p. 10049 (Mar. 19, 1982). The Chicago petitioners and their amici, however, argue that the handgun ban has left them vulnerable to criminals. Chicago Police Department statistics, we are told, reveal that the City's handgun murder rate has actually increased since the ban was enacted1 and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.2

Several of the Chicago petitioners have been the targets of threats and violence. For instance, Otis McDonald, who is in his *3027 late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers. App. 16-17; Brief for State Firearm Associations as Amici Curiae 20-21; Brief for State of Texas et al. as Amici Curiae 7-8. Colleen Lawson is a Chicago resident whose home has been targeted by burglars. "In Mrs. Lawson's judgment, possessing a handgun in Chicago would decrease her chances of suffering serious injury or death should she ever be threatened again in her home."3 McDonald, Lawson, and the other Chicago petitioners own handguns that they store outside of the city limits, but they would like to keep their handguns in their homes for protection. See App. 16-19, 43-44 (McDonald), 20-24 (C. Lawson), 19, 36 (Orlov), 20-21, 40 (D.Lawson).

After our decision in Heller, the Chicago petitioners and two groups4 filed suit against the City in the United States District Court for the Northern District of Illinois. They sought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Fourteenth Amendments to the United States Constitution. Another action challenging the Oak Park law was filed in the same District Court by the National Rifle Association (NRA) and two Oak Park residents. In addition, the NRA and others filed a third action challenging the Chicago ordinances. All three cases were assigned to the same District Judge.

The District Court rejected plaintiffs' argument that the Chicago and Oak Park laws are unconstitutional. See App. 83-84; NRA, Inc. v. Oak Park, 617 F.Supp.2d 752, 754 (N.D.Ill.2008). The court noted that the Seventh Circuit had "squarely upheld the constitutionality of a ban on handguns a quarter century ago," id., at 753 (citing Quilici v. Morton Grove, 695 F.2d 261 (C.A.7 1982)), and that Heller had explicitly refrained from "opin[ing] on the subject of incorporation vel non of the Second Amendment," NRA, 617 F.Supp.2d, at 754. The court observed that a district judge has a "duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction." Id., at 753.

The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), and Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812 (1894)—that were decided in the wake of this Court's interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1873). The Seventh Circuit described the rationale of those cases as "defunct" and recognized that they did not consider the question whether the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right to keep and bear arms. NRA, Inc. v. Chicago, 567 F.3d 856, 857, 858 (2009). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have "direct application," and it declined to predict how the Second Amendment would fare under this Court's modern "selective incorporation" approach. Id., at 857-858 (internal quotation marks omitted).

*3028 We granted certiorari. 557 U.S. ___, 130 S.Ct. 48, 174 L.Ed.2d 632 (2009).

II

A

Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons. Petitioners' primary submission is that this right is among the "privileges or immunities of citizens of the United States" and that the narrow interpretation of the Privileges or Immunities Clause adopted in the Slaughter-House Cases, supra, should now be rejected. As a secondary argument, petitioners contend that the Fourteenth Amendment's Due Process Clause "incorporates" the Second Amendment right.

Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only if that right is an indispensable attribute of any "`civilized'" legal system. Brief for Municipal Respondents 9. If it is possible to imagine a civilized country that does not recognize the right, the municipal respondents tell us, then that right is not protected by due process. Ibid. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures. Id., at 21-23. In light of the parties' far-reaching arguments, we begin by recounting this Court's analysis over the years of the relationship between the provisions of the Bill of Rights and the States.

B

The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was "of great importance" but "not of much difficulty." Id., at 247. In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government. See also Lessee of Livingston v. Moore, 7 Pet. 469, 551-552, 8 L.Ed. 751 (1833) ("[I]t is now settled that those amendments [in the Bill of Rights] do not extend to the states").

The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country's federal system. The provision at issue in this case, § 1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge "the privileges or immunities of citizens of the United States" or deprive "any person of life, liberty, or property, without due process of law."

Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment's reference to "the privileges or immunities of citizens of the United States." The Slaughter-House Cases, supra, involved challenges to a Louisiana law permitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel Miller's opinion for the Court concluded that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws." Id., at 79. The Court held that other fundamental rights—rights that predated the creation of the Federal Government and that "the State governments were created to establish and secure"— were not protected by the Clause. Id., at 76.

In drawing a sharp distinction between the rights of federal and state citizenship, *3029 the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment's Privileges or Immunities Clause spoke of "the privileges or immunities of citizens of the United States," and the Court contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause of Article IV, both of which refer to state citizenship.5 (Emphasis added.) Second, the Court stated that a contrary reading would "radically chang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people," and the Court refused to conclude that such a change had been made "in the absence of language which expresses such a purpose too clearly to admit of doubt." Id., at 78. Finding the phrase "privileges or immunities of citizens of the United States" lacking by this high standard, the Court reasoned that the phrase must mean something more limited.

Under the Court's narrow reading, the Privileges or Immunities Clause protects such things as the right

"to come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions ... [and to] become a citizen of any State of the Union by a bonafide residence therein, with the same rights as other citizens of that State." Id., at 79-80 (internal quotation marks omitted).

Finding no constitutional protection against state intrusion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Justice Field, joined by Chief Justice Chase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth Amendment's Privileges or Immunities Clause to "a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage." Id., at 96; see also id., at 104. Justice Field opined that the Privileges or Immunities Clause protects rights that are "in their nature ... fundamental," including the right of every man to pursue his profession without the imposition of unequal or discriminatory restrictions. Id., at 96-97. Justice Bradley's dissent observed that "we are not bound to resort to implication ... to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself." Id., at 118. Justice Bradley would have construed the Privileges or Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Id., at 119. Justice Swayne described the majority's narrow reading of the Privileges or Immunities Clause as "turn[ing] ... what was meant for bread into a stone." Id., at 129 (dissenting opinion).

Today, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation. See, e.g., Saenz v. Roe, 526 U.S. 489, 522, n. 1, 527, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (THOMAS, J., dissenting) (scholars of the Fourteenth Amendment agree "that the Clause does not mean what the Court said it meant in 1873"); Amar, Substance and Method in the Year 2000, 28 Pepperdine L.Rev. 601, *3030 631, n. 178 (2001) ("Virtually no serious modern scholar—left, right, and center— thinks that this [interpretation] is a plausible reading of the Amendment"); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an "overwhelming consensus among leading constitutional scholars" that the opinion is "egregiously wrong"); C. Black, A New Birth of Freedom 74-75 (1997).

Three years after the decision in the Slaughter-House Cases, the Court decided Cruikshank, the first of the three 19th-century cases on which the Seventh Circuit relied. 92 U.S. 542, 23 L.Ed. 588. In that case, the Court reviewed convictions stemming from the infamous Colfax Massacre in Louisiana on Easter Sunday 1873. Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men.6 Cruikshank himself allegedly marched unarmed African-American prisoners through the streets and then had them summarily executed.7 Ninety-seven men were indicted for participating in the massacre, but only nine went to trial. Six of the nine were acquitted of all charges; the remaining three were acquitted of murder but convicted under the Enforcement Act of 1870, 16 Stat. 140, for banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms.8

The Court reversed all of the convictions, including those relating to the deprivation of the victims' right to bear arms. Cruikshank, 92 U.S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose "is not a right granted by the Constitution" and is not "in any manner dependent upon that instrument for its existence." Id., at 553. "The second amendment," the Court continued, "declares that it shall not be infringed; but this ... means no more than that it shall not be infringed by Congress." Ibid. "Our later decisions in Presser v. Illinois, 116 U.S. 252, 265[, 6 S.Ct. 580, 29 L.Ed. 615] (1886), and Miller v. Texas, 153 U.S. 535, 538[, 14 S.Ct. 874, 38 L.Ed. 812] (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Heller, 554 U.S., at ___, n. 23, 128 S.Ct., at 2813 n. 23.

C

As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners' claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the "privileges or immunities of citizens of the United States." In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause's full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. See Saenz, supra, at 522, n. 1, 119 S.Ct. 1518 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the *3031 Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

At the same time, however, this Court's decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U.S., at ___, n. 23, 128 S.Ct., at 2813 n. 23. None of those cases "engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases." Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of "selective incorporation" under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory.

Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are binding on the States through the Due Process Clause. In Cruikshank, the Court held that the general "right of the people peaceably to assemble for lawful purposes," which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U.S., at 551-552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a "fundamental righ[t] ... safeguarded by the due process clause of the Fourteenth Amendment." De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.

D

1

In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (due process does not require grand jury indictment); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (due process prohibits States from taking of private property for public use without just compensation). Five features of the approach taken during the ensuing era should be noted.

First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey, 211 U.S. 78, 99, 29 S.Ct. 14, 53 L.Ed. 97 (1908).

Second, the Court explained that the only rights protected against state infringement by the Due Process Clause were those rights "of such a nature that they are included in the conception of due process of law." Ibid. See also, e.g., Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942); Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 82 L.Ed. 660 (1936); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). While it was "possible that some of the personal rights safeguarded by the first eight Amendments against National action [might] also be safeguarded against state action," the Court stated, this was "not because those rights are enumerated in the first eight Amendments." Twining, supra, at 99, 29 S.Ct. 14.

*3032 The Court used different formulations in describing the boundaries of due process. For example, in Twining, the Court referred to "immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard." 211 U.S., at 102, 29 S.Ct. 14 (internal quotation marks omitted). In Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Court spoke of rights that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." And in Palko, the Court famously said that due process protects those rights that are "the very essence of a scheme of ordered liberty" and essential to "a fair and enlightened system of justice." 302 U.S., at 325, 58 S.Ct. 149.

Third, in some cases decided during this era the Court "can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection." Duncan v. Louisiana, 391 U.S. 145, 149, n. 14, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Thus, in holding that due process prohibits a State from taking private property without just compensation, the Court described the right as "a principle of natural equity, recognized by all temperate and civilized governments, from a deep and universal sense of its justice." Chicago, B. & Q.R. Co., supra, at 238, 17 S.Ct. 581. Similarly, the Court found that due process did not provide a right against compelled incrimination in part because this right "has no place in the jurisprudence of civilized and free countries outside the domain of the common law." Twining, supra, at 113, 29 S.Ct. 14.

Fourth, the Court during this era was not hesitant to hold that a right set out in the Bill of Rights failed to meet the test for inclusion within the protection of the Due Process Clause. The Court found that some such rights qualified. See, e.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (freedom of speech and press); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (same); Powell, supra (assistance of counsel in capital cases); De Jonge, supra (freedom of assembly); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (free exercise of religion). But others did not. See, e.g., Hurtado, supra (grand jury indictment requirement); Twining, supra (privilege against self-incrimination).

Finally, even when a right set out in the Bill of Rights was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from the protection or remedies provided against abridgment by the Federal Government. To give one example, in Betts the Court held that, although the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, the Due Process Clause required appointment of counsel in state criminal proceedings only where "want of counsel in [the] particular case ... result[ed] in a conviction lacking in ... fundamental fairness." 316 U.S., at 473, 62 S.Ct. 1252. Similarly, in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the Court held that the "core of the Fourth Amendment" was implicit in the concept of ordered liberty and thus "enforceable against the States through the Due Process Clause" but that the exclusionary rule, which applied in federal cases, did not apply to the States. Id., at 27-28, 33, 69 S.Ct. 1359.

2

An alternative theory regarding the relationship between the Bill of Rights and *3033 § 1 of the Fourteenth Amendment was championed by Justice Black. This theory held that § 1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. See, e.g., Adamson, supra, at 71-72, 67 S.Ct. 1672 (Black, J., dissenting); Duncan, supra, at 166, 88 S.Ct. 1444 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States and, in so doing, overruled this Court's decision in Barron.9 Adamson, 332 U.S., at 72, 67 S.Ct. 1672 (dissenting opinion).10 Nonetheless, the Court never has embraced Justice Black's "total incorporation" theory.

*3034 3

While Justice Black's theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of "selective incorporation," i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 341, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Malloy v. Hogan, 378 U.S. 1, 5-6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Pointer v. Texas, 380 U.S. 400, 403-404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Duncan, 391 U.S., at 147-148, 88 S.Ct. 1444; Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The decisions during this time abandoned three of the previously noted characteristics of the earlier period.11 The Court made it clear that the governing standard is not whether any "civilized system [can] be imagined that would not accord the particular protection." Duncan, 391 U.S., at 149, n. 14, 88 S.Ct. 1444. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149, and n. 14, 88 S.Ct. 1444; see also id., at 148, 88 S.Ct. 1444 (referring to those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" (emphasis added; internal quotation marks omitted)).

The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights.12 Only *3035 a handful of the Bill of Rights protections remain unincorporated.13

Finally, the Court abandoned "the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights," stating that it would be "incongruous" to apply different standards "depending on whether the claim was asserted in a state or federal court." Malloy, 378 U.S., at 10-11, 84 S.Ct. 1489 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of Rights protections "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Id., at 10, 84 S.Ct. 1489; see also Mapp v. Ohio, 367 U.S. 643, 655-656, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Aguilar v. Texas, 378 U.S. 108, 110, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Pointer, 380 U.S., at 406, 85 S.Ct. 1065; Duncan, supra, at 149, 157-158, 88 S.Ct. 1444; Benton, 395 U.S., at 794-795, 89 S.Ct. 2056; Wallace v. Jaffree, 472 U.S. 38, 48-49, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985).14

*3036 Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g., Mapp, supra (overruling in part Wolf, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782); Gideon, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (overruling Betts, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595); Malloy, supra (overruling Adamson, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, and Twining, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97); Benton, supra, at 794, 89 S.Ct. 2056 (overruling Palko, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288).

III

With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U.S., at 149, 88 S.Ct. 1444, or as we have said in a related context, whether this right is "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997) (internal quotation marks omitted).

A

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. 554 U.S., at ___, 128 S.Ct., at 2801-2802; see also id., at ___, 128 S.Ct., at 2817 (stating that the "inherent right of self-defense has been central to the Second Amendment right"). Explaining that "the need for defense of self, family, and property is most acute" in the home, ibid., we found that this right applies to handguns because they are "the most preferred firearm in the nation to `keep' and use for protection of one's home and family," id., at ___, 128 S.Ct., at 2818 (some internal quotation marks omitted); see also id., at ___, 128 S.Ct., at 2817 (noting that handguns are "overwhelmingly chosen by American society for [the] lawful purpose" of self-defense); id., at ___, 128 S.Ct., at 2818 ("[T]he American people have considered the handgun to be the quintessential self-defense weapon"). Thus, we concluded, citizens must be permitted "to use [handguns] for the core lawful purpose of self-defense." Id., at ___, 128 S.Ct., at 2818.

Heller makes it clear that this right is "deeply rooted in this Nation's history and tradition." Glucksberg, supra, at 721, 117 S.Ct. 2302 (internal quotation marks omitted). Heller explored the right's origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, 554 U.S., at ___ - ___, 128 S.Ct., at 2797-2798, and that by 1765, Blackstone was able to assert that the right to keep and bear arms was "one of the fundamental rights of Englishmen," id., at ___, 128 S.Ct., at 2798.

*3037 Blackstone's assessment was shared by the American colonists. As we noted in Heller, King George III's attempt to disarm the colonists in the 1760's and 1770's "provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms."16 Id., at ___, 128 S.Ct., at 2799; see also L. Levy, Origins of the Bill of Rights 137-143 (1999) (hereinafter Levy).

The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights. "During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric." Heller, supra, at ___, 128 S.Ct., at 2801 (citing Letters from the Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed.1981)); see also Federal Farmer: An Additional Number of Letters to the Republican, Letter XVIII (Jan. 25, 1788), in 17 Documentary History of the Ratification of the Constitution 360, 362-363 (J. Kaminski & G. Saladino eds.1995); S. Halbrook, The Founders' Second Amendment 171-278 (2008). Federalists responded, not by arguing that the right was insufficiently important to warrant protection but by contending that the right was adequately protected by the Constitution's assignment of only limited powers to the Federal Government. Heller, supra, at ___, 128 S.Ct., at 2801-2802; cf. The Federalist No. 46, p. 296 (C. Rossiter ed. 1961) (J. Madison). Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government. See Levy 143-149; J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 155-164 (1994). But those who were fearful that the new Federal Government would infringe traditional rights such as the right to keep and bear arms insisted on the adoption of the Bill of Rights as a condition for ratification of the Constitution. See 1 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 327-331 (2d ed. 1854); 3 id., at 657-661; 4 id., at 242-246, 248-249; see also Levy 26-34; A. Kelly & W. Harbison, The American Constitution: Its Origins and Development 110, 118 (7th ed.1991). This is surely powerful evidence that the right was regarded as fundamental in the sense relevant here.

This understanding persisted in the years immediately following the ratification of the Bill of Rights. In addition to the four States that had adopted Second Amendment analogues before ratification, nine more States adopted state constitutional provisions protecting an individual right to keep and bear arms between 1789 and 1820. Heller, supra, at ___, 128 S.Ct., at 2802-2804. Founding-era legal commentators confirmed the importance of the right to early Americans. St. George Tucker, for example, described the right to keep and bear arms as "the true palladium of liberty" and explained that prohibitions on the right would place liberty "on the brink of destruction." 1 Blackstone's Commentaries, Editor's App. 300 (S. Tucker ed. 1803); see also W. Rawle, A View of the Constitution of the United States of America, 125-126 (2d ed. 1829) (reprint *3038 2009); 3 J. Story, Commentaries on the Constitution of the United States § 1890, p. 746 (1833) ("The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them").

B

1

By the 1850's, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense. See M. Doubler, Civilian in Peace, Soldier in War 87-90 (2003); Amar, Bill of Rights 258-259. Abolitionist authors wrote in support of the right. See L. Spooner, The Unconstitutionality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A Treatise on the Unconstitutionality of American Slavery 117-118 (1849) (reprint 1969). And when attempts were made to disarm "Free-Soilers" in "Bloody Kansas," Senator Charles Sumner, who later played a leading role in the adoption of the Fourteenth Amendment, proclaimed that "[n]ever was [the rifle] more needed in just self-defense than now in Kansas." The Crime Against Kansas: The Apologies for the Crime: The True Remedy, Speech of Hon. Charles Sumner in the Senate of the United States 64-65 (1856). Indeed, the 1856 Republican Party Platform protested that in Kansas the constitutional rights of the people had been "fraudulently and violently taken from them" and the "right of the people to keep and bear arms" had been "infringed." National Party Platforms 1840-1972, p. 27 (5th ed.1973).17

After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. See Heller, 554 U.S., at ___, 128 S.Ct., at 2810; E. Foner, Reconstruction: America's Unfinished Revolution 1863-1877, p. 8 (1988) (hereinafter Foner). The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that "no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife." Certain Offenses of Freedmen, 1865 Miss. Laws p. 165, § 1, in 1 Documentary History of Reconstruction 289 (W. Fleming ed.1950); see also Regulations for Freedmen in Louisiana, in id., at 279-280; H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (describing a Kentucky law); E. McPherson, The Political History of the United States of America During the Period of Reconstruction 40 (1871) (describing a Florida law); id., at 33 (describing an Alabama law).18

*3039 Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: "In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country." 39th Cong. Globe 40 (1865). The Report of the Joint Committee on Reconstruction — which was widely reprinted in the press and distributed by Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amendment19— contained numerous examples of such abuses. See, e.g., Joint Committee on Reconstruction, H.R.Rep. No. 30, 39th Cong., 1st Sess., pt. 2, pp. 219, 229, 272, pt. 3, pp. 46, 140, pt. 4, pp. 49-50 (1866); see also S. Exec. Doc. No. 2, 39th Cong., 1st Sess., 23-24, 26, 36 (1865). In one town, the "marshal [took] all arms from returned colored soldiers, and [was] very prompt in shooting the blacks whenever an opportunity occur[red]." H.R. Exec. Doc. No. 70, at 238 (internal quotation marks omitted). As Senator Wilson put it during the debate on a failed proposal to disband Southern militias: "There is one unbroken chain of testimony from all people that are loyal to this country, that the greatest outrages are perpetrated by armed men who go up and down the country searching houses, disarming people, committing outrages of every kind and description." 39th Cong. Globe 915 (1866).20

Union Army commanders took steps to secure the right of all citizens to keep and bear arms,21 but the 39th Congress concluded *3040 that legislative action was necessary. Its efforts to safeguard the right to keep and bear arms demonstrate that the right was still recognized to be fundamental.

The most explicit evidence of Congress' aim appears in § 14 of the Freedmen's Bureau Act of 1866, which provided that "the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens... without respect to race or color, or previous condition of slavery." 14 Stat. 176-177 (emphasis added).22 Section 14 thus explicitly guaranteed that "all the citizens," black and white, would have "the constitutional right to bear arms."

The Civil Rights Act of 1866, 14 Stat. 27, which was considered at the same time as the Freedmen's Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.23Section 1 of the Civil Rights Act guaranteed the "full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens." Ibid. This language was virtually identical to language in § 14 of the Freedmen's Bureau Act, 14 Stat. 176-177 ("the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal"). And as noted, the latter provision went on to explain that one of the "laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal" was "the constitutional right to bear arms." Ibid. Representative Bingham believed that the Civil Rights Act protected the same rights as enumerated in the Freedmen's Bureau bill, which of course explicitly mentioned the right to keep and bear arms. 39th Cong. Globe 1292. The unavoidable conclusion is that the Civil Rights Act, like the Freedmen's Bureau Act, aimed to protect "the constitutional *3041 right to bear arms" and not simply to prohibit discrimination. See also Amar, Bill of Rights 264-265 (noting that one of the "core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances" of freedmen who had been stripped of their arms and to "affirm the full and equal right of every citizen to self-defense").

Congress, however, ultimately deemed these legislative remedies insufficient. Southern resistance, Presidential vetoes, and this Court's pre-Civil-War precedent persuaded Congress that a constitutional amendment was necessary to provide full protection for the rights of blacks.24 Today, it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); see also Amar, Bill of Rights 187; Calabresi, Two Cheers for Professor Balkin's Originalism, 103 Nw. U.L.Rev. 663, 669-670 (2009).

In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three "indispensable" "safeguards of liberty under our form of Government." 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:

"Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete." Ibid.

Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, "have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (Sen. James Nye); see also Foner 258-259.25

Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: "Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty." "The fourteenth amendment, now so happily adopted, settles the whole question." Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating the Civil Rights Act of 1871, Congress routinely *3042 referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. See Halbrook, Freedmen 120-131. Finally, legal commentators from the period emphasized the fundamental nature of the right. See, e.g., T. Farrar, Manual of the Constitution of the United States of America § 118, p. 145 (1867) (reprint 1993); J. Pomeroy, An Introduction to the Constitutional Law of the United States § 239, pp. 152-153 (3d ed. 1875).

The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms. See Calabresi & Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? 87 Texas L.Rev. 7, 50 (2008).26 Quite a few of these state constitutional guarantees, moreover, explicitly protected the right to keep and bear arms as an individual right to self-defense. See Ala. Const., Art. I, § 28 (1868); Conn. Const., Art. I, § 17 (1818); Ky. Const., Art. XIII, § 25 (1850); Mich. Const., Art. XVIII, § 7 (1850); Miss. Const., Art. I, § 15 (1868); Mo. Const., Art. I, § 8 (1865); Tex. Const., Art. I, § 13 (1869); see also Mont. Const., Art. III, § 13 (1889); Wash. Const., Art. I, § 24 (1889); Wyo. Const., Art. I, § 24 (1889); see also State v. McAdams, 714 P.2d 1236, 1238 (Wyo.1986). What is more, state constitutions adopted during the Reconstruction era by former Confederate States included a right to keep and bear arms. See, e.g., Ark. Const., Art. I, § 5 (1868); Miss. Const., Art. I, § 15 (1868); Tex. Const., Art. I, § 13 (1869). A clear majority of the States in 1868, therefore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government.27

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

2

Despite all this evidence, municipal respondents contend that Congress, in the years immediately following the Civil War, merely sought to outlaw "discriminatory measures taken against freedmen, which it addressed by adopting a non-discrimination principle" and that even an outright ban on the possession of firearms was regarded as acceptable, "so long as it was not done in a discriminatory manner." Brief for Municipal Respondents 7. They argue that Members of Congress overwhelmingly viewed § 1 of the Fourteenth Amendment "as an antidiscrimination rule," and they cite statements to the effect *3043 that the section would outlaw discriminatory measures. Id., at 64. This argument is implausible.

First, while § 1 of the Fourteenth Amendment contains "an antidiscrimination rule," namely, the Equal Protection Clause, municipal respondents can hardly mean that § 1 does no more than prohibit discrimination. If that were so, then the First Amendment, as applied to the States, would not prohibit nondiscriminatory abridgments of the rights to freedom of speech or freedom of religion; the Fourth Amendment, as applied to the States, would not prohibit all unreasonable searches and seizures but only discriminatory searches and seizures—and so on. We assume that this is not municipal respondents' view, so what they must mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment. We reject that suggestion.

Second, municipal respondents' argument ignores the clear terms of the Freedmen's Bureau Act of 1866, which acknowledged the existence of the right to bear arms. If that law had used language such as "the equal benefit of laws concerning the bearing of arms," it would be possible to interpret it as simply a prohibition of racial discrimination. But § 14 speaks of and protects "the constitutional right to bear arms," an unmistakable reference to the right protected by the Second Amendment. And it protects the "full and equal benefit" of this right in the States. 14 Stat. 176-177. It would have been nonsensical for Congress to guarantee the full and equal benefit of a constitutional right that does not exist.

Third, if the 39th Congress had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers. In the years immediately following the Civil War, a law banning the possession of guns by all private citizens would have been nondiscriminatory only in the formal sense. Any such law—like the Chicago and Oak Park ordinances challenged here—presumably would have permitted the possession of guns by those acting under the authority of the State and would thus have left firearms in the hands of the militia and local peace officers. And as the Report of the Joint Committee on Reconstruction revealed, see supra, at 3039, those groups were widely involved in harassing blacks in the South.

Fourth, municipal respondents' purely antidiscrimination theory of the Fourteenth Amendment disregards the plight of whites in the South who opposed the Black Codes. If the 39th Congress and the ratifying public had simply prohibited racial discrimination with respect to the bearing of arms, opponents of the Black Codes would have been left without the means of self-defense—as had abolitionists in Kansas in the 1850's.

Fifth, the 39th Congress' response to proposals to disband and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen, supra, 20-21. Disarmament, it was argued, would violate the members' right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, § 6, 14 Stat. 485, 487; Halbrook, Freedmen 68-69; Cramer 858-861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the *3044 States legislated in an evenhanded manner.

IV

Municipal respondents' remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.

Municipal respondents' main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights "`recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.'" Brief for Municipal Respondents 9 (quoting Chicago, B. & Q.R. Co., 166 U.S., at 238, 17 S.Ct. 581). According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment. Id., at 21-23.

This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases. See Duncan, 391 U.S., at 149, and n. 14, 88 S.Ct. 1444. And the present-day implications of municipal respondents' argument are stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country.28If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.

*3045 Municipal respondents attempt to salvage their position by suggesting that their argument applies only to substantive as opposed to procedural rights. Brief for Municipal Respondents 10, n. 3. But even in this trimmed form, municipal respondents' argument flies in the face of more than a half-century of precedent. For example, in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947), the Court held that the Fourteenth Amendment incorporates the Establishment Clause of the First Amendment. Yet several of the countries that municipal respondents recognize as civilized have established state churches.29 If we were to adopt municipal respondents' theory, all of this Court's Establishment Clause precedents involving actions taken by state and local governments would go by the boards.

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id., at 11, 13-17.

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ("The exclusionary rule generates `substantial social costs,' United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which sometimes include setting the guilty free and the dangerous at large"); Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means "a defendant who may be guilty of a serious crime will go free"); Miranda v. Arizona, 384 U.S. 436, 517, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting); id., at 542, 86 S.Ct. 1602 (White, J., dissenting) (objecting that the Court's rule "[i]n some unknown number of cases . . . will return a killer, a rapist or other criminal to the streets . . . to repeat his crime"); Mapp, 367 U.S., at 659, 81 S.Ct. 1684. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.

We likewise reject municipal respondents' argument that we should depart from our established incorporation methodology on the ground that making the *3046 Second Amendment binding on the States and their subdivisions is inconsistent with principles of federalism and will stifle experimentation. Municipal respondents point out—quite correctly—that conditions and problems differ from locality to locality and that citizens in different jurisdictions have divergent views on the issue of gun control. Municipal respondents therefore urge us to allow state and local governments to enact any gun control law that they deem to be reasonable, including a complete ban on the possession of handguns in the home for self-defense. Brief for Municipal Respondents 18-20, 23.

There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two-track approach to incorporation. Throughout the era of "selective incorporation," Justice Harlan in particular, invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach. See, e.g., Roth v. United States, 354 U.S. 476, 500-503, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (Harlan, J., concurring in result in part and dissenting in part); Mapp, supra, at 678-680, 81 S.Ct. 1684 (Harlan, J., dissenting); Gideon, 372 U.S., at 352, 83 S.Ct. 792 (Harlan, J., concurring); Malloy, 378 U.S., at 14-33, 84 S.Ct. 1489 (Harlan, J., dissenting); Pointer, 380 U.S., at 408-409, 85 S.Ct. 1065 (Harlan, J., concurring in result); Washington, 388 U.S., at 23-24, 87 S.Ct. 1920 (Harlan, J., concurring in result); Duncan, 391 U.S., at 171-193, 88 S.Ct. 1444 (Harlan, J., dissenting); Benton, 395 U.S., at 808-809, 89 S.Ct. 2056 (Harlan, J., dissenting); Williams v. Florida, 399 U.S. 78, 117, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Harlan, J., dissenting in part and concurring in result in part).

Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents' argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise,30 that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. As noted by the 38 States that have appeared in this case as amici supporting petitioners, "[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment." Brief for State of Texas et al. as Amici Curiae 23.

*3047 Municipal respondents and their amici complain that incorporation of the Second Amendment right will lead to extensive and costly litigation, but this argument applies with even greater force to constitutional rights and remedies that have already been held to be binding on the States. Consider the exclusionary rule. Although the exclusionary rule "is not an individual right," Herring v. United States, 555 U.S. ___, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009), but a "judicially created rule," id., at ___, 128 S.Ct., at 2789, this Court made the rule applicable to the States. See Mapp, supra, at 660, 81 S.Ct. 1684. The exclusionary rule is said to result in "tens of thousands of contested suppression motions each year." Stuntz, The Virtues and Vices of the Exclusionary Rule, 20 Harv. J. Law & Pub. Pol'y, 443, 444 (1997).

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to "interest-balancing" and have sustained a variety of restrictions. Brief for Municipal Respondents 23-31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U.S., at ___ - ___, 128 S.Ct., at 2820-2821, and this Court decades ago abandoned "the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights," Malloy, supra, at 10-11, 84 S.Ct. 1489 (internal quotation marks omitted).

As evidence that the Fourteenth Amendment has not historically been understood to restrict the authority of the States to regulate firearms, municipal respondents and supporting amici cite a variety of state and local firearms laws that courts have upheld. But what is most striking about their research is the paucity of precedent sustaining bans comparable to those at issue here and in Heller. Municipal respondents cite precisely one case (from the late 20th century) in which such a ban was sustained. See Brief for Municipal Respondents 26-27 (citing Kalodimos v. Morton Grove, 103 Ill.2d 483, 83 Ill.Dec. 308, 470 N.E.2d 266 (1984)); see also Reply Brief for Respondents NRA et al. 23, n. 7 (asserting that no other court has ever upheld a complete ban on the possession of handguns). It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U.S., at ___, 128 S.Ct., at 2816. We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id., at ___ - ___, 128 S.Ct., at 2816-2817. We repeat those assurances here. Despite municipal respondents' doomsday proclamations, incorporation does not imperil every law regulating firearms.

Municipal respondents argue, finally, that the right to keep and bear arms is unique among the rights set out in the first eight Amendments "because the reason for codifying the Second Amendment (to protect the militia) differs from the purpose (primarily, to use firearms to engage in self-defense) that is claimed to make the right implicit in the concept of ordered liberty." Brief for Municipal Respondents 36-37. Municipal respondents suggest that the Second Amendment right differs *3048 from the rights heretofore incorporated because the latter were "valued for [their] own sake." Id., at 33. But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumental by any measure. Moreover, this contention repackages one of the chief arguments that we rejected in Heller, i.e., that the scope of the Second Amendment right is defined by the immediate threat that led to the inclusion of that right in the Bill of Rights. In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U.S., at ___, 128 S.Ct., at 2801-2802. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was "the central component of the right itself." Ibid.

V

A

We turn, finally, to the two dissenting opinions. Justice STEVENS' eloquent opinion covers ground already addressed, and therefore little need be added in response. Justice STEVENS would "`ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.'" Post, at 3092 (quoting Malloy, 378 U.S., at 24, 84 S.Ct. 1489 (Harlan, J., dissenting)). The question presented in this case, in his view, "is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom." Post, at 3103. He would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." Post, at 3093.

As we have explained, the Court, for the past half-century, has moved away from the two-track approach. If we were now to accept Justice STEVENS' theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.

The relationship between the Bill of Rights' guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as "the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights." Malloy, supra, at 10-11, 84 S.Ct. 1489 (internal quotation marks omitted).

B

Justice BREYER's dissent makes several points to which we briefly respond. To begin, while there is certainly room for disagreement about Heller's analysis of the history of the right to keep and bear arms, nothing written since Heller persuades us to reopen the question there decided. Few other questions of original meaning have been as thoroughly explored.

Justice BREYER's conclusion that the Fourteenth Amendment does not incorporate *3049 the right to keep and bear arms appears to rest primarily on four factors: First, "there is no popular consensus" that the right is fundamental, post, at 3124; second, the right does not protect minorities or persons neglected by those holding political power, post, at 3125; third, incorporation of the Second Amendment right would "amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government" and preventing local variations, post, at 3125; and fourth, determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise, post, at 3126-3128. Even if we believed that these factors were relevant to the incorporation inquiry, none of these factors undermines the case for incorporation of the right to keep and bear arms for self-defense.

First, we have never held that a provision of the Bill of Rights applies to the States only if there is a "popular consensus" that the right is fundamental, and we see no basis for such a rule. But in this case, as it turns out, there is evidence of such a consensus. An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental. See Brief for Senator Kay Bailey Hutchison et al. as Amici Curiae 4. Another brief submitted by 38 States takes the same position. Brief for State of Texas et al. as Amici Curiae 6.

Second, petitioners and many others who live in high-crime areas dispute the proposition that the Second Amendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living in high-crime areas was recently highlighted when two Illinois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City's streets.31 The legislators noted that the number of Chicago homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black.32 Amici supporting incorporation of the right to keep and bear arms contend that the right is especially important for women and members of other groups that may be especially vulnerable to violent crime.33 If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of handguns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.

*3050 Third, Justice BREYER is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. "[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table." Heller, 554 U.S., at ___, 128 S.Ct., at 2822. This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.

Finally, Justice BREYER is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. See supra, at 3046-3047. "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon." Heller, supra, at ___, 128 S.Ct., at 2821.

* * *

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U.S., at 149, and n. 14, 88 S.Ct. 1444. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

See Brief for Heartland Institute as Amicus Curiae 6-7 (noting that handgun murder rate was 9.65 in 1983 and 13.88 in 2008).

2

Brief for Buckeye Firearms Foundation, Inc., et al. as Amici Curiae 8-9 ("In 2002 and again in 2008, Chicago had more murders than any other city in the U.S., including the much larger Los Angeles and New York" (internal quotation marks omitted)); see also Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 17-21, and App. A (providing comparisons of Chicago's rates of assault, murder, and robbery to average crime rates in 24 other large cities).

3

Brief for Women State Legislators et al. as Amici Curiae 2.

4

The Illinois State Rifle Association and the Second Amendment Foundation, Inc.

5

The first sentence of the Fourteenth Amendment makes "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof . . . citizens of the United States and of the State wherein they reside." (Emphasis added.) The Privileges and Immunities Clause of Article IV provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (Emphasis added.)

6

See C. Lane, The Day Freedom Died 265-266 (2008); see also Brief for NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 3, and n. 2.

7

See Lane, supra, at 106.

8

United States v. Cruikshank, 92 U.S. 542, 544-545, 23 L.Ed. 588 (statement of the case), 548, 553 (opinion of the Court) (1875); Lawrence, Civil Rights and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67 Tulane L.Rev. 2113, 2153 (1993).

9

Senator Jacob Howard, who spoke on behalf of the Joint Committee on Reconstruction and sponsored the Amendment in the Senate, stated that the Amendment protected all of "the personal rights guarantied and secured by the first eight amendments of the Constitution." Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong. Globe). Representative John Bingham, the principal author of the text of § 1, said that the Amendment would "arm the Congress ... with the power to enforce the bill of rights as it stands in the Constitution today." Id., at 1088; see also id., at 1089-1090; A. Amar, The Bill of Rights: Creation and Reconstruction 183 (1998) (hereinafter Amar, Bill of Rights). After ratification of the Amendment, Bingham maintained the view that the rights guaranteed by § 1 of the Fourteenth Amendment "are chiefly defined in the first eight amendments to the Constitution of the United States." Cong. Globe, 42d Cong., 1st Sess., App. 84 (1871). Finally, Representative Thaddeus Stevens, the political leader of the House and acting chairman of the Joint Committee on Reconstruction, stated during the debates on the Amendment that "the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States." 39th Cong. Globe 2459; see also M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 112 (1986) (counting at least 30 statements during the debates in Congress interpreting § 1 to incorporate the Bill of Rights); Brief for Constitutional Law Professors as Amici Curiae 20 (collecting authorities and stating that "[n]ot a single senator or representative disputed [the incorporationist] understanding" of the Fourteenth Amendment).

10

The municipal respondents and some of their amici dispute the significance of these statements. They contend that the phrase "privileges or immunities" is not naturally read to mean the rights set out in the first eight Amendments, see Brief for Historians et al. as Amici Curiae 13-16, and that "there is `support in the legislative history for no fewer than four interpretations of the ... Privileges or Immunities Clause.'" Brief for Municipal Respondents 69 (quoting Currie, The Reconstruction Congress, 75 U. Chi. L.Rev. 383, 406 (2008); brackets omitted). They question whether there is sound evidence of "`any strong public awareness of nationalizing the entire Bill of Rights.'" Brief for Municipal Respondents 69 (quoting Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67, 68 Ohio St. L.J. 1509, 1600 (2007)). Scholars have also disputed the total incorporation theory. See, e.g., Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan. L.Rev. 5 (1949); Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St. L.J. 435 (1981).

Proponents of the view that § 1 of the Fourteenth Amendment makes all of the provisions of the Bill of Rights applicable to the States respond that the terms privileges, immunities, and rights were used interchangeably at the time, see, e.g., Curtis, supra, at 64-65, and that the position taken by the leading congressional proponents of the Amendment was widely publicized and understood, see, e.g., Wildenthal, supra, at 1564-1565, 1590; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866-1868, 30 Whittier L.Rev. 695 (2009). A number of scholars have found support for the total incorporation of the Bill of Rights. See Curtis, supra, at 57-130; Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57, 61 (1993); see also Amar, Bill of Rights 181-230. We take no position with respect to this academic debate.

11

By contrast, the Court has never retreated from the proposition that the Privileges or Immunities Clause and the Due Process Clause present different questions. And in recent cases addressing unenumerated rights, we have required that a right also be "implicit in the concept of ordered liberty." See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal quotation marks omitted).

12

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937) (freedom of assembly); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (warrant requirement); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (exclusionary rule); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (privilege against self-incrimination); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (compulsory process); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (speedy trial); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (assistance of counsel); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) (prohibition against excessive bail).

13

In addition to the right to keep and bear arms (and the Sixth Amendment right to a unanimous jury verdict, see n. 14, infra), the only rights not fully incorporated are (1) the Third Amendment's protection against quartering of soldiers; (2) the Fifth Amendment's grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment's prohibition on excessive fines.

We never have decided whether the Third Amendment or the Eighth Amendment's prohibition of excessive fines applies to the States through the Due Process Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276, n. 22, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (declining to decide whether the excessive-fines protection applies to the States); see also Engblom v. Carey, 677 F.2d 957, 961 (C.A.2 1982) (holding as a matter of first impression that the "Third Amendment is incorporated into the Fourteenth Amendment for application to the states").

Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment's civil jury requirement long predate the era of selective incorporation.

14

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); see also Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. See Johnson, supra, at 395, 92 S.Ct. 1620 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U.S., at 406, 92 S.Ct. 1628 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414-415, 92 S.Ct. 1628 (Stewart, J., dissenting); Johnson, supra, at 381-382, 92 S.Ct. 1620 (Douglas, J., dissenting). Justice Powell's concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395-396, 92 S.Ct. 1620 (Brennan, J., dissenting) (footnote omitted) ("In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment's jury trial guarantee, however it is to be construed, has identical application against both State and Federal Governments").

15

Citing Jewish, Greek, and Roman law, Blackstone wrote that if a person killed an attacker, "the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame." 4 W. Blackstone, Commentaries on the Laws of England 182 (reprint 1992).

16

For example, an article in the Boston Evening Post stated: "For it is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requires them to be equip'd with arms, & c. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs." Boston Evening Post, Feb. 6, 1769, in Boston Under Military Rule 1768-1769, p. 61 (1936) (emphasis deleted).

17

Abolitionists and Republicans were not alone in believing that the right to keep and bear arms was a fundamental right. The 1864 Democratic Party Platform complained that the confiscation of firearms by Union troops occupying parts of the South constituted "the interference with and denial of the right of the people to bear arms in their defense." National Party Platforms 1840-1972, at 34.

18

In South Carolina, prominent black citizens held a convention to address the State's black code. They drafted a memorial to Congress, in which they included a plea for protection of their constitutional right to keep and bear arms: "`We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and bear arms shall not be infringed ... that the late efforts of the Legislature of this State to pass an act to deprive us [of] arms be forbidden, as a plain violation of the Constitution.'" S. Halbrook, Freedmen, The Fourteenth Amendment, and The Right to Bear Arms, 1866-1876, p. 9 (1998) (hereinafter Halbrook, Freedmen) (quoting 2 Proceedings of the Black State Conventions, 1840-1865, p. 302 (P. Foner & G. Walker eds.1980)). Senator Charles Sumner relayed the memorial to the Senate and described the memorial as a request that black citizens "have the constitutional protection in keeping arms." 39th Cong. Globe 337.

19

See B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 265-266 (1914); Adamson v. California, 332 U.S. 46, 108-109, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (appendix to dissenting opinion of Black, J.).

20

Disarmament by bands of former Confederate soldiers eventually gave way to attacks by the Ku Klux Klan. In debates over the later enacted Enforcement Act of 1870, Senator John Pool observed that the Klan would "order the colored men to give up their arms; saying that everybody would be Kukluxed in whose house fire-arms were found." Cong. Globe, 41st Cong., 2d Sess., 2719 (1870); see also H.R. Exec. Doc. No. 268, 42d Cong., 2d Sess., 2 (1872).

21

For example, the occupying Union commander in South Carolina issued an order stating that "[t]he constitutional rights of all loyal and well disposed inhabitants to bear arms, will not be infringed." General Order No. 1, Department of South Carolina, January 1, 1866, in 1 Documentary History of Reconstruction 208 (W. Fleming ed.1950). Union officials in Georgia issued a similar order, declaring that "`[a]ll men, without the distinction of color, have the right to keep arms to defend their homes, families or themselves.'" Cramer, "This Right is Not Allowed by Governments That Are Afraid of The People": The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified, 17 Geo. Mason L.Rev. 823, 854 (2010) (hereinafter Cramer) (quoting Right to Bear Arms, Christian Recorder, Feb. 24, 1866, pp. 1-2). In addition, when made aware of attempts by armed parties to disarm blacks, the head of the Freedmen's Bureau in Alabama "made public [his] determination to maintain the right of the negro to keep and to bear arms, and [his] disposition to send an armed force into any neighborhood in which that right should be systematically interfered with." Joint Committee on Reconstruction, H.R.Rep. No. 30, 39th Cong., 1st Sess., pt. 3, p. 140 (1866).

22

The Freedmen's Bureau bill was amended to include an express reference to the right to keep and bear arms, see 39th Cong. Globe 654 (Rep. Thomas Eliot), even though at least some Members believed that the unamended version alone would have protected the right, see id., at 743 (Sen. Lyman Trumbull).

23

There can be do doubt that the principal proponents of the Civil Rights Act of 1866 meant to end the disarmament of African Americans in the South. In introducing the bill, Senator Trumbull described its purpose as securing to blacks the "privileges which are essential to freemen." Id., at 474. He then pointed to the previously described Mississippi law that "prohibit[ed] any negro or mulatto from having fire-arms" and explained that the bill would "destroy" such laws. Ibid. Similarly, Representative Sidney Clarke cited disarmament of freedmen in Alabama and Mississippi as a reason to support the Civil Rights Act and to continue to deny Alabama and Mississippi representation in Congress: "I regret, sir, that justice compels me to say, to the disgrace of the Federal Government, that the `reconstructed' State authorities of Mississippi were allowed to rob and disarm our veteran soldiers and arm the rebels fresh from the field of treasonable strife. Sir, the disarmed loyalists of Alabama, Mississippi, and Louisiana are powerless to-day, and oppressed by the pardoned and encouraged rebels of those States. They appeal to the American Congress for protection. In response to this appeal I shall vote for every just measure of protection, for I do not intend to be among the treacherous violators of the solemn pledge of the nation." Id., at 1838-1839.

24

For example, at least one southern court had held the Civil Rights Act to be unconstitutional. That court did so, moreover, in the course of upholding the conviction of an African-American man for violating Mississippi's law against firearm possession by freedmen. See Decision of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitutional, N.Y. Times, Oct. 26, 1866, p. 2, col. 3.

25

Other Members of the 39th Congress stressed the importance of the right to keep and bear arms in discussing other measures. In speaking generally on reconstruction, Representative Roswell Hart listed the "`right of the people to keep and bear arms'" as among those rights necessary to a "republican form of government." 39th Cong. Globe 1629. Similarly, in objecting to a bill designed to disarm southern militias, Senator Willard Saulsbury argued that such a measure would violate the Second Amendment. Id., at 914-915. Indeed, the bill "ultimately passed in a form that disbanded militias but maintained the right of individuals to their private firearms." Cramer 858.

26

More generally worded provisions in the constitutions of seven other States may also have encompassed a right to bear arms. See Calabresi & Agudo, 87 Texas L.Rev., at 52.

27

These state constitutional protections often reflected a lack of law enforcement in many sections of the country. In the frontier towns that did not have an effective police force, law enforcement often could not pursue criminals beyond the town borders. See Brief for Rocky Mountain Gun Owners et al. as Amici Curiae 15. Settlers in the West and elsewhere, therefore, were left to "repe[l] force by force when the intervention of society. . . [was] too late to prevent an injury." District of Columbia v. Heller, 554 U.S. ___, ___, 128 S.Ct. 2783, 2799, 171 L.Ed.2d 637 (2008) (internal quotation marks omitted). The settlers' dependence on game for food and economic livelihood, moreover, undoubtedly undergirded these state constitutional guarantees. See id., at ___, ___, ___, 128 S.Ct. at 2801-2802, 2807, 2810.

28

For example, the United States affords criminal jury trials far more broadly than other countries. See, e.g., Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L.Rev. 403 (1992); Leib, A Comparison of Criminal Jury Decision Rules in Democratic Countries, 5 Ohio St. J.Crim. L. 629, 630 (2008); Henderson, The Wrongs of Victim's Rights, 37 Stan. L.Rev. 937, 1003, n. 296 (1985); see also Roper v. Simmons, 543 U.S. 551, 624, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (SCALIA, J., dissenting) ("In many significant respects the laws of most other countries differ from our law—including. . . such explicit provisions of our Constitution as the right to jury trial"). Similarly, our rules governing pretrial interrogation differ from those in countries sharing a similar legal heritage. See Dept. of Justice, Office of Legal Policy, Report to the Attorney General on the Law of Pretrial Interrogation: Truth in Criminal Justice Report No. 1 (Feb. 12, 1986), reprinted in 22 U. Mich. J.L. Ref. 437, 534-542 (1989) (comparing the system envisioned by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), with rights afforded by England, Scotland, Canada, India, France, and Germany). And the "Court-pronounced exclusionary rule . . . is distinctively American." Roper, supra, at 624, 125 S.Ct. 1183 (SCALIA, J., dissenting) (citing Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 415, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting) (noting that exclusionary rule was "unique to American jurisprudence" (internal quotation marks omitted))); see also Sklansky, Anti-Inquisitorialism, 122 Harv. L.Rev. 1634, 1648-1656, 1689-1693 (2009) (discussing the differences between American and European confrontation rules).

29

England and Denmark have state churches. See Torke, The English Religious Establishment, 12 J. of Law & Religion 399, 417-427 (1995-1996) (describing legal status of Church of England); Constitutional Act of Denmark, pt. I, § 4 (1953) ("The Evangelical Lutheran Church shall be the Established Church of Denmark"). The Evangelical Lutheran Church of Finland has attributes of a state church. See Christensen, Is the Lutheran Church Still the State Church? An Analysis of Church-State Relations in Finland, 1995 B.Y.U.L.Rev. 585, 596-600 (describing status of church under Finnish law). The Web site of the Evangelical Lutheran Church of Finland states that the church may be usefully described as both a "state church" and a "folk church." See J. Seppo, The Current Condition of Church-State Relations in Finland, online at http://evl.fi/EVLen.nsf/ Documents/838DDBEF 4A28712AC225730F001F7C67?OpenDocument & lang=EN (all Internet materials as visited June 23, 2010, and available in Clerk of Court's case file).

30

As noted above, see n. 13, supra, cases that predate the era of selective incorporation held that the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment's civil jury requirement do not apply to the States. See Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (indictment); Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916) (civil jury).

As a result of Hurtado, most States do not require a grand jury indictment in all felony cases, and many have no grand juries. See Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, State Court Organization 2004, pp. 213, 215-217 (2006) (Table 38), online at http://bjs.ojp.usdoj.gov/ content/pub/pdf/sco04.pdf.

As a result of Bombolis, cases that would otherwise fall within the Seventh Amendment are now tried without a jury in state small claims courts. See, e.g., Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 124 P.3d 550 (2005) (no right to jury trial in small claims court under Nevada Constitution).

31

See Mack & Burnette, 2 Lawmakers to Quinn: Send the Guard to Chicago, Chicago Tribune, Apr. 26, 2010, p. 6.

32

Janssen & Knowles, Send in Troops? Chicago Sun-Times, Apr. 26, 2010, p. 2; see also Brief for NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 5, n. 4 (stating that in 2008, almost three out of every four homicide victims in Chicago were African Americans); id., at 5-6 (noting that "each year [in Chicago], many times more African Americans are murdered by assailants wielding guns than were killed during the Colfax massacre" (footnote omitted)).

33

See Brief for Women State Legislators et al. as Amici Curiae 9-10, 14-15; Brief for Jews for the Preservation of Firearms Ownership as Amicus Curiae 3-4; see also Brief for Pink Pistols et al. as Amici Curiae in District of Columbia v. Heller, O.T.2007, No. 07-290, pp. 5-11.

Justice SCALIA, concurring.

I join the Court's opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." Albright v. Oliver, 510 U.S. 266, 275, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (SCALIA, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.

I write separately only to respond to some aspects of Justice STEVENS' dissent. Not that aspect which disagrees with the majority's application of our precedents to this case, which is fully covered by the Court's opinion. But much of what Justice STEVENS writes is a broad condemnation of the theory of interpretation which underlies the Court's opinion, a theory that makes the traditions of our people paramount. He proposes a different theory, which he claims is more "cautiou[s]" and respectful of proper limits on the judicial role. Post, at 3119-3120. It is that claim I wish to address.

I

A

After stressing the substantive dimension of what he has renamed the "liberty *3051 clause," post, at 3090-3091,1 Justice STEVENS proceeds to urge readoption of the theory of incorporation articulated in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), see post, at 3096-3099. But in fact he does not favor application of that theory at all. For whether Palko requires only that "a fair and enlightened system of justice would be impossible without" the right sought to be incorporated, 302 U.S., at 325, 58 S.Ct. 149, or requires in addition that the right be rooted in the "traditions and conscience of our people," ibid. (internal quotation marks omitted), many of the rights Justice STEVENS thinks are incorporated could not past muster under either test: abortion, post, at 3091-3092 (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)); homosexual sodomy, post, at 3097 (citing Lawrence v. Texas, 539 U.S. 558, 572, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)); the right to have excluded from criminal trials evidence obtained in violation of the Fourth Amendment, post, at 3098 (citing Mapp v. Ohio, 367 U.S. 643, 650, 655-657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)); and the right to teach one's children foreign languages, post, at 3091 (citing Meyer v. Nebraska, 262 U.S. 390, 399-403, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)), among others.

That Justice STEVENS is not applying any version of Palko is clear from comparing, on the one hand, the rights he believes are covered, with, on the other hand, his conclusion that the right to keep and bear arms is not covered. Rights that pass his test include not just those "relating to marriage, procreation, contraception, family relationships, and child rearing and education," but also rights against "[g]overnment action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, [or] perpetrates gross injustice." Post, at 3101 (internal quotation marks omitted). Not all such rights are in, however, since only "some fundamental aspects of personhood, dignity, and the like" are protected, post, at ___ (emphasis added). Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal quotation marks omitted), as a right can be, see District of Columbia v. Heller, 554 U.S. ___, ___ - ___, ___ - ___, ___ - ___, 128 S.Ct. 2783, 2798-2799, 2801-2804, 2809-2812, 171 L.Ed.2d 637 (2008). I can find no other explanation for such certitude except that Justice STEVENS, despite his forswearing of "personal and private notions," post, at 3100 (internal quotation marks omitted), deeply believes it should be out.

The subjective nature of Justice STEVENS' standard is also apparent from his claim that it is the courts' prerogative— indeed their duty—to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine, post, at 3098-3099, and n. 21. Courts, he proclaims, must "do justice to [the Clause's] urgent call and its open texture" by exercising the "interpretive discretion the latter embodies." Post, *3052 at 3099-3100. (Why the people are not up to the task of deciding what new rights to protect, even though it is they who are authorized to make changes, see U.S. Const., Art. V, is never explained.2) And it would be "judicial abdication" for a judge to "tur[n] his back" on his task of determining what the Fourteenth Amendment covers by "outsourc[ing]" the job to "historical sentiment," post, at 3099—that is, by being guided by what the American people throughout our history have thought. It is only we judges, exercising our "own reasoned judgment," post, at 3096, who can be entrusted with deciding the Due Process Clause's scope—which rights serve the Amendment's "central values," post, at 3101—which basically means picking the rights we want to protect and discarding those we do not.

B

Justice STEVENS resists this description, insisting that his approach provides plenty of "guideposts" and "constraints" to keep courts from "injecting excessive subjectivity" into the process.2 Post, at 3099-3100. Plenty indeed—and that alone is a problem. The ability of omnidirectional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve.

He begins with a brief nod to history, post, at 3099-3100, but as he has just made clear, he thinks historical inquiry unavailing, post, at 3098-3099. Moreover, trusting the meaning of the Due Process Clause to what has historically been protected is circular, see post, at 3098-3099, since that would mean no new rights could get in.

Justice STEVENS moves on to the "most basic" constraint on subjectivity his theory offers: that he would "esche[w] attempts to provide any all-purpose, top-down, totalizing theory of `liberty.'" Post, at 3100. The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts' ability to impose their will on the ignorant masses is not merely naive, but absurd. If there are no right answers, there are no wrong answers either.

Justice STEVENS also argues that requiring courts to show "respect for the *3053 democratic process" should serve as a constraint. Post, at 3101. That is true, but Justice STEVENS would have them show respect in an extraordinary manner. In his view, if a right "is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate." Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in Casey, Lawrence, and other such cases fit the theory—but at the cost of insulting rather than respecting the democratic process.

The next constraint Justice STEVENS suggests is harder to evaluate. He describes as "an important tool for guiding judicial discretion" "sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society." Post, at 3101. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? Attempting to give the concept more precision, Justice STEVENS explains that "sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution." Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case Justice STEVENS cites in support, see ibid., Casey, 505 U.S., at 849, 112 S.Ct. 2791, dispels any illusion that he has a meaningful form of judicial modesty in mind.

Justice STEVENS offers no examples to illustrate the next constraint: stare decisis, post, at 3102. But his view of it is surely not very confining, since he holds out as a "canonical" exemplar of the proper approach, see post, at 3097, 3118, Lawrence, which overruled a case decided a mere 17 years earlier, Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), see 539 U.S., at 578, 123 S.Ct. 2472 (it "was not correct when it was decided, and it is not correct today"). Moreover, Justice STEVENS would apply that constraint unevenly: He apparently approves those Warren Court cases that adopted jot-for-jot incorporation of procedural protections for criminal defendants, post, at 3094, but would abandon those Warren Court rulings that undercut his approach to substantive rights, on the basis that we have "cut back" on cases from that era before, post, at 3094-3095.

Justice STEVENS also relies on the requirement of a "careful description of the asserted fundamental liberty interest" to limit judicial discretion. Post, at 3102 (internal quotation marks omitted). I certainly agree with that requirement, see Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), though some cases Justice STEVENS approves have not applied it seriously, see, e.g., Lawrence, supra, at 562, 123 S.Ct. 2472 ("The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions"). But if the "careful description" requirement is used in the manner we have hitherto employed, then the enterprise of determining the Due Process Clause's "conceptual core," post, at 3101, is a waste of time. In the cases he cites we sought a careful, specific description of the right at issue in order to determine whether that right, thus narrowly defined, was *3054 fundamental. See, e.g., Glucksberg, 521 U.S., at 722-728, 117 S.Ct. 2258; Reno, supra, at 302-306, 113 S.Ct. 1439; Collins v. Harker Heights, 503 U.S. 115, 125-129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 269-279, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); see also Vacco v. Quill, 521 U.S. 793, 801-808, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). The threshold step of defining the asserted right with precision is entirely unnecessary, however, if (as Justice STEVENS maintains) the "conceptual core" of the "liberty clause," post, at 3101, includes a number of capacious, hazily defined categories. There is no need to define the right with much precision in order to conclude that it pertains to the plaintiff's "ability independently to define [his] identity," his "right to make certain unusually important decisions that will affect his own, or his family's, destiny," or some aspect of his "[s]elf-determination, bodily integrity, freedom of conscience, intimate relationships, political equality, dignity [or] respect." Ibid. (internal quotation marks omitted). Justice STEVENS must therefore have in mind some other use for the careful-description requirement—perhaps just as a means of ensuring that courts "procee[d] slowly and incrementally," post, at 3102. But that could be achieved just as well by having them draft their opinions in longhand.4

II

If Justice STEVENS' account of the constraints of his approach did not demonstrate that they do not exist, his application of that approach to the case before us leaves no doubt. He offers several reasons for concluding that the Second Amendment right to keep and bear arms is not fundamental enough to be applied against the States.5 None is persuasive, but more pertinent to my purpose, each is either intrinsically indeterminate, would preclude incorporation of rights we have already held incorporated, or both. His approach therefore does nothing to stop a judge from arriving at any conclusion he sets out to reach.

Justice STEVENS begins with the odd assertion that "firearms have a fundamentally ambivalent relationship to liberty," since sometimes they are used to cause (or sometimes accidentally produce) injury to others. Post, at 3107. The source of the *3055 rule that only nonambivalent liberties deserve Due Process protection is never explained —proof that judges applying Justice STEVENS' approach can add new elements to the test as they see fit. The criterion, moreover, is inherently manipulable. Surely Justice STEVENS does not mean that the Clause covers only rights that have zero harmful effect on anyone. Otherwise even the First Amendment is out. Maybe what he means is that the right to keep and bear arms imposes too great a risk to others' physical well-being. But as the plurality explains, ante, at 3045, other rights we have already held incorporated pose similarly substantial risks to public safety. In all events, Justice STEVENS supplies neither a standard for how severe the impairment on others' liberty must be for a right to be disqualified, nor (of course) any method of measuring the severity.

Justice STEVENS next suggests that the Second Amendment right is not fundamental because it is "different in kind" from other rights we have recognized. Post, at 3108-3109. In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation's history and tradition. But Justice STEVENS has a different distinction in mind: Even though he does "not doubt for a moment that many Americans . . . see [firearms] as critical to their way of life as well as to their security," he pronounces that owning a handgun is not "critical to leading a life of autonomy, dignity, or political equality."6 Post, at 3109. Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment—the antithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.7

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post, at 3110-3111. When it comes to guns, Justice STEVENS explains, our Nation is already an outlier among "advanced democracies"; not even our "oldest allies" protect as robust a right as we do, and we should not widen the gap. Ibid. Never mind that he explains neither which countries *3056 qualify as "advanced democracies" nor why others are irrelevant. For there is an even clearer indication that this criterion lets judges pick which rights States must respect and those they can ignore: As the plurality shows, ante, at 3044-3045, and nn. 28-29, this follow-the-foreign-crowd requirement would foreclose rights that we have held (and Justice STEVENS accepts) are incorporated, but that other "advanced" nations do not recognize—from the exclusionary rule to the Establishment Clause. A judge applying Justice STEVENS' approach must either throw all of those rights overboard or, as cases Justice STEVENS approves have done in considering unenumerated rights, simply ignore foreign law when it undermines the desired conclusion, see, e.g., Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (making no mention of foreign law).

Justice STEVENS also argues that since the right to keep and bear arms was codified for the purpose of "prevent[ing] elimination of the militia," it should be viewed as "`a federalism provision'" logically incapable of incorporation. Post, at 3111 (quoting Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 45, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (THOMAS, J., concurring in judgment); some internal quotation marks omitted). This criterion, too, evidently applies only when judges want it to. The opinion Justice STEVENS quotes for the "federalism provision" principle, Justice THOMAS's concurrence in Newdow, argued that incorporation of the Establishment Clause "makes little sense" because that Clause was originally understood as a limit on congressional interference with state establishments of religion. Id., at 49-51, 124 S.Ct. 2301. Justice STEVENS, of course, has no problem with applying the Establishment Clause to the States. See, e.g., id., at 8, n. 4, 124 S.Ct. 2301 (opinion for the Court by STEVENS, J.) (acknowledging that the Establishment Clause "appl[ies] to the States by incorporation into the Fourteenth Amendment"). While he insists that Clause is not a "federalism provision," post, at 3111, n. 40, he does not explain why it is not, but the right to keep and bear arms is (even though only the latter refers to a "right of the people"). The "federalism" argument prevents the incorporation of only certain rights.

Justice STEVENS next argues that even if the right to keep and bear arms is "deeply rooted in some important senses," the roots of States' efforts to regulate guns run just as deep. Post, at 3112-3113 (internal quotation marks omitted). But this too is true of other rights we have held incorporated. No fundamental right—not even the First Amendment—is absolute. The traditional restrictions go to show the scope of the right, not its lack of fundamental character. At least that is what they show (Justice STEVENS would agree) for other rights. Once again, principles are applied selectively.

Justice STEVENS' final reason for rejecting incorporation of the Second Amendment reveals, more clearly than any of the others, the game that is afoot. Assuming that there is a "plausible constitutional basis" for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons. Post, at 3114. Even if we had the authority to withhold rights that are within the Constitution's command (and we assuredly do not), two of the reasons Justice STEVENS gives for abstention show just how much power he would hand to judges. The States'"right to experiment" with solutions to the problem of gun violence, he says, is at its apex here because "the best solution is far from clear." Post, at 3114 (internal quotation marks omitted). That is true of most serious *3057 social problems—whether, for example, "the best solution" for rampant crime is to admit confessions unless they are affirmatively shown to have been coerced, but see Miranda v. Arizona, 384 U.S. 436, 444-445, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or to permit jurors to impose the death penalty without a requirement that they be free to consider "any relevant mitigating factor," see Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), which in turn leads to the conclusion that defense counsel has provided inadequate defense if he has not conducted a "reasonable investigation" into potentially mitigating factors, see, e.g., Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), inquiry into which question tends to destroy any prospect of prompt justice, see, e.g., Wong v. Belmontes, 558 U.S. ___, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime committed in 1981). The obviousness of the optimal answer is in the eye of the beholder. The implication of Justice STEVENS' call for abstention is that if We The Court conclude that They The People's answers to a problem are silly, we are free to "interven[e]," post, at 3114, but if we too are uncertain of the right answer, or merely think the States may be on to something, we can loosen the leash.

A second reason Justice STEVENS says we should abstain is that the States have shown they are "capable" of protecting the right at issue, and if anything have protected it too much. Post, at 3115. That reflects an assumption that judges can distinguish between a proper democratic decision to leave things alone (which we should honor), and a case of democratic market failure (which we should step in to correct). I would not—and no judge should— presume to have that sort of omniscience, which seems to me far more "arrogant," post, at 3111, than confining courts' focus to our own national heritage.

III

Justice STEVENS' response to this concurrence, post, at 3116-3119, makes the usual rejoinder of "living Constitution" advocates to the criticism that it empowers judges to eliminate or expand what the people have prescribed: The traditional, historically focused method, he says, reposes discretion in judges as well.8 Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.

I will stipulate to that.9 But the question to be decided is not whether the historically focused method is a perfect *3058 means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world. Or indeed, even more narrowly than that: whether it is demonstrably much better than what Justice STEVENS proposes. I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process. It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor. In the most controversial matters brought before this Court—for example, the constitutionality of prohibiting abortion, assisted suicide, or homosexual sodomy, or the constitutionality of the death penalty—any historical methodology, under any plausible standard of proof, would lead to the same conclusion.10 Moreover, the methodological differences that divide historians, and the varying interpretive assumptions they bring to their work, post, at 3117-3118, are nothing compared to the differences among the American people (though perhaps not among graduates of prestigious law schools) with regard to the moral judgments Justice STEVENS would have courts pronounce. And whether or not special expertise is needed to answer historical questions, judges most certainly have no "comparative . . . advantage," post, at 3101-3102 (internal quotation marks omitted), in resolving moral disputes. What is more, his approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replace history with moral philosophy, but would have courts consider both.

And the Court's approach intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision. Justice STEVENS' approach, on the other hand, deprives the people of that power, since whatever the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be. After all, he notes, the people have been wrong before, post, at 3119, and courts may conclude they are wrong in the future. Justice STEVENS abhors a system in which "majorities or powerful interest groups always get their way," post, at 3119, but replaces it with a system in which unelected and life-tenured judges always get their way. That such usurpation is effected unabashedly, see post, at 3117-3118—with "the judge's cards . . . laid on the table," ibid.—makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is Justice STEVENS' approach, not the Court's, that puts democracy in peril.

1

I do not entirely understand Justice STEVENS' renaming of the Due Process Clause. What we call it, of course, does not change what the Clause says, but shorthand should not obscure what it says. Accepting for argument's sake the shift in emphasis—from avoiding certain deprivations without that "process" which is "due," to avoiding the deprivations themselves—the Clause applies not just to deprivations of "liberty," but also to deprivations of "life" and even "property."

2

Justice STEVENS insists that he would not make courts the sole interpreters of the "liberty clause"; he graciously invites "[a]ll Americans" to ponder what the Clause means to them today. Post, at 3099, n. 22. The problem is that in his approach the people's ponderings do not matter, since whatever the people decide, courts have the last word.

3

Justice BREYER is not worried by that prospect. His interpretive approach applied to incorporation of the Second Amendment includes consideration of such factors as "the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution's structural aims"; whether recognizing a particular right will "further the Constitution's effort to ensure that the government treats each individual with equal respect" or will "help maintain the democratic form of government"; whether it is "inconsistent . . . with the Constitution's efforts to create governmental institutions well suited to the carrying out of its constitutional promises"; whether it fits with "the Framers' basic reason for believing the Court ought to have the power of judicial review"; courts' comparative advantage in answering empirical questions that may be involved in applying the right; and whether there is a "strong offsetting justification" for removing a decision from the democratic process. Post, at 3123-3124, 3125-3129 (dissenting opinion).

4

After defending the careful-description criterion, Justice STEVENS quickly retreats and cautions courts not to apply it too stringently. Post, at 3102-3103. Describing a right too specifically risks robbing it of its "universal valence and a moral force it might otherwise have," ibid., and "loads the dice against its recognition," post, at 3102, n. 25 (internal quotation marks omitted). That must be avoided, since it endangers rights Justice STEVENS does like. See ibid. (discussing Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)). To make sure those rights get in, we must leave leeway in our description, so that a right that has not itself been recognized as fundamental can ride the coattails of one that has been.

5

Justice STEVENS claims that I mischaracterize his argument by referring to the Second Amendment right to keep and bear arms, instead of "the interest in keeping a firearm of one's choosing in the home," the right he says petitioners assert. Post, at 3109, n. 36. But it is precisely the "Second Amendment right to keep and bear arms" that petitioners argue is incorporated by the Due Process Clause. See, e.g., Pet. for Cert. i. Under Justice STEVENS' own approach, that should end the matter. See post, at 3102 ("[W]e must pay close attention to the precise liberty interest the litigants have asked us to vindicate"). In any event, the demise of watered-down incorporation, see ante, at 3067-3068, means that we no longer subdivide Bill of Rights guarantees into their theoretical components, only some of which apply to the States. The First Amendment freedom of speech is incorporated—not the freedom to speak on Fridays, or to speak about philosophy.

6

Justice STEVENS goes a step farther still, suggesting that the right to keep and bear arms is not protected by the "liberty clause" because it is not really a liberty at all, but a "property right." Post, at 3109. Never mind that the right to bear arms sounds mighty like a liberty; and never mind that the "liberty clause" is really a Due Process Clause which explicitly protects "property," see United States v. Carlton, 512 U.S. 26, 41-42, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (SCALIA, J., concurring in judgment). Justice STEVENS' theory cannot explain why the Takings Clause, which unquestionably protects property, has been incorporated, see Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897), in a decision he appears to accept, post, at 3096, n. 14.

7

As Justice STEVENS notes, see post, at 3116-3117, I accept as a matter of stare decisis the requirement that to be fundamental for purposes of the Due Process Clause, a right must be "implicit in the concept of ordered liberty," Lawrence, supra, at 593, n. 3, 123 S.Ct. 2472 (SCALIA, J., dissenting) (internal quotation marks omitted). But that inquiry provides infinitely less scope for judicial invention when conducted under the Court's approach, since the field of candidates is immensely narrowed by the prior requirement that a right be rooted in this country's traditions. Justice STEVENS, on the other hand, is free to scan the universe for rights that he thinks "implicit in the concept, etc." The point Justice STEVENS makes here is merely one example of his demand that an historical approach to the Constitution prove itself, not merely much better than his in restraining judicial invention, but utterly perfect in doing so. See Part III, infra.

8

Justice STEVENS also asserts that his approach is "more faithful to this Nation's constitutional history" and to "the values and commitments of the American people, as they stand today," post, at 3118. But what he asserts to be the proof of this is that his approach aligns (no surprise) with those cases he approves (and dubs "canonical," ibid.). Cases he disfavors are discarded as "hardly bind[ing]" "excesses," post, at 3094-3095, or less "enduring," post, at 3096, n. 16. Not proven. Moreover, whatever relevance Justice STEVENS ascribes to current "values and commitments of the American people" (and that is unclear, see post, at 3115, n. 47), it is hard to see how it shows fidelity to them that he disapproves a different subset of old cases than the Court does.

9

That is not to say that every historical question on which there is room for debate is indeterminate, or that every question on which historians disagree is equally balanced. Cf. post, at 3117-3118. For example, the historical analysis of the principal dissent in Heller is as valid as the Court's only in a two-dimensional world that conflates length and depth.

10

By the way, Justice STEVENS greatly magnifies the difficulty of an historical approach by suggesting that it was my burden in Lawrence to show the "ancient roots of proscriptions against sodomy," post, at 3117-3118 (internal quotation marks omitted). Au contraire, it was his burden (in the opinion he joined) to show the ancient roots of the right of sodomy.

Justice THOMAS, concurring in part and concurring in the judgment.

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment "fully applicable to the States." Ante, at 3026. I write separately because I believe there is a more straightforward path to this conclusion, one that is *3059 more faithful to the Fourteenth Amendment's text and history.

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment's Due Process Clause because it is "fundamental" to the American "scheme of ordered liberty," ante, at 3036 (citing Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)), and "`deeply rooted in this Nation's history and tradition,'" ante, at 3036 (quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to "process." Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause.

I

In District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), this Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense, striking down a District of Columbia ordinance that banned the possession of handguns in the home. Id., at ___, 128 S.Ct., at 2821-2822. The question in this case is whether the Constitution protects that right against abridgment by the States.

As the Court explains, if this case were litigated before the Fourteenth Amendment's adoption in 1868, the answer to that question would be simple. In Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833), this Court held that the Bill of Rights applied only to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal—not state— power, and held that if "the framers of these amendments [had] intended them to be limitations on the powers of the state governments," "they would have declared this purpose in plain and intelligible language." Id., at 250. Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority. Id., at 248-250; see Lessee of Livingston v. Moore, 7 Pet. 469, 551-552, 8 L.Ed. 751 (1833) (reaffirming Barron's holding); Permoli v. Municipality No. 1 of New Orleans, 3 How. 589, 609-610, 11 L.Ed. 739 (1845) (same).

Nearly three decades after Barron, the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation's early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure. See, e.g., 3 Records of the Federal Convention of 1787, p. 212 (M. Farrand ed.1911) (remarks of Luther Martin) ("[S]lavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the sense of the equal rights of mankind" (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953) ("[N]o man is good enough to govern another man, without that other's consent. I say this is the leading principle—the sheet anchor of American republicanism. . . . Now the relation *3060 of masters and slaves is, pro tanto, a total violation of this principle").

After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, § 1 of the Fourteenth Amendment, significantly altered our system of government. The first sentence of that section provides that "[a]ll 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." This unambiguously overruled this Court's contrary holding in Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id., at 405-406.

The meaning of § 1's next sentence has divided this Court for many years. That sentence begins with the command that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status.

This Court's precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1873), decided just five years after the Fourteenth Amendment's adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id., at 78. The Court defined that category to include only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws." Id., at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing "[t]he right to peaceably assemble" and "the privilege of the writ of habeas corpus" as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.

Chief among those cases is United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because "[t]he right . . . existed long before the adoption of the Constitution." 92 U.S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not "in any manner dependent upon that instrument for its existence." Id., at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution's adoption—was the very reason citizens could not enforce it against States through the Fourteenth.

That circular reasoning effectively has been the Court's last word on the Privileges *3061 or Immunities Clause.1 In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe, 526 U.S. 489, 503, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), that are not readily described as essential to liberty.

As a consequence of this Court's marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of § 1 in search of an alternative fount of such rights. They found one in a most curious place—that section's command that every State guarantee "due process" to any person before depriving him of "life, liberty, or property." At first, litigants argued that this Due Process Clause "incorporated" certain procedural rights codified in the Bill of Rights against the States. The Court generally rejected those claims, however, on the theory that the rights in question were not sufficiently "fundamental" to warrant such treatment. See, e.g., Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (grand jury indictment requirement); Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900) (12-person jury requirement); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908) (privilege against self-incrimination).

That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within § 1's guarantee of "due process." These included not only procedural protections listed in the first eight Amendments, see, e.g., Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (protection against double jeopardy), but substantive rights as well, see, e.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (right to free speech); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (same). In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those "fundamental" aspects of the right required Due Process Clause protection. See, e.g., Betts v. Brady, 316 U.S. 455, 473, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where "want of counsel . . . result[ed] in a conviction lacking in . . . fundamental fairness"). In more recent years, this Court has "abandoned the notion" that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante, at 3035 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently "fundamental," ante, at 3046, 3048-3050 (plurality opinion)—a term the Court has long struggled to define.

While this Court has at times concluded that a right gains "fundamental" status only if it is essential to the American "scheme of ordered liberty" or "`deeply rooted in this Nation's history and tradition,'" *3062 ante, at 3036 (plurality opinion) (quoting Glucksberg, 521 U.S., at 721, 117 S.Ct. 2302), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (concluding that the Due Process Clause protects "liberty of the person both in its spatial and in its more transcendent dimensions"). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Lawrence, supra.

All of this is a legal fiction. The notion that a constitutional provision that guarantees only "process" before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court's substantive due process precedents together is their lack of a guiding principle to distinguish "fundamental" rights that warrant protection from nonfundamental rights that do not. Today's decision illustrates the point. Replaying a debate that has endured from the inception of the Court's substantive due process jurisprudence, the dissents laud the "flexibility" in this Court's substantive due process doctrine, post, at 3096 (STEVENS, J., dissenting); see post, at 3122-3123 (BREYER, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante, at 3044-3048. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification.

To be sure, the plurality's effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post, at 3123 (BREYER, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are "well-suited to the carrying out of . . . constitutional promises"); post, at 3100 (STEVENS, J., dissenting) (warning that there is no "all-purpose, top-down, totalizing theory of `liberty'" protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court's cases now claim it does.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation's legal system. *3063 But stare decisis is only an "adjunct" of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 963, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not "an inexorable command." Lawrence, supra, at 577, 123 S.Ct. 2472. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

II

"It cannot be presumed that any clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174, 2 L.Ed. 60 (1803) (Marshall, C. J.). Because the Court's Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text.

The Privileges or Immunities Clause of the Fourteenth Amendment declares that "[n]o State . . . shall abridge the privileges or immunities of citizens of the United States." In interpreting this language, it is important to recall that constitutional provisions are "`written to be understood by the voters.'" Heller, 554 U.S., at ___, 128 S.Ct., at 2788 (quoting United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931)). Thus, the objective of this inquiry is to discern what "ordinary citizens" at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U.S., at ___, 128 S.Ct., at 2788.

A

1

At the time of Reconstruction, the terms "privileges" and "immunities" had an established meaning as synonyms for "rights." The two words, standing alone or paired together, were used interchangeably with the words "rights," "liberties," and "freedoms," and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the "rights and liberties" of Englishmen as "private immunities" and "civil privileges"). A number of antebellum judicial decisions used the terms in this manner. See, e.g., Magill v. Brown, 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) ("The words `privileges and immunities' relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places"). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g., N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining "privilege" as "a right or immunity not enjoyed by others or by all" and listing among its synonyms the words "immunity," "franchise," "right," and "liberty"); id., at 661 (defining "immunity" as "[f]reedom from an obligation" or "particular privilege"); id., at 1140 (defining "right" as "[p]rivilege or immunity granted by authority").2

The fact that a particular interest was designated as a "privilege" or "immunity," *3064 rather than a "right," "liberty," or "freedom," revealed little about its substance. Blackstone, for example, used the terms "privileges" and "immunities" to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing "private immunities" as a "residuum of natural liberty," and "civil privileges" as those "which society has engaged to provide, in lieu of the natural liberties so given up by individuals" (footnote omitted)); id., at *129 (stating that a corporate charter enables a corporation to "establish rules and orders" that serve as "the privileges and immunities . . . of the corporation"). Writers in this country at the time of Reconstruction followed a similar practice. See, e.g., Racine & Mississippi R. Co. v. Farmers' Loan & Trust Co., 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed "`to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises'"); Hathorn v. Calef, 53 Me. 471, 483-484 (1866) (concluding that a statute did not "modify any power, privileges, or immunity, pertaining to the franchise of any corporation"). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: "Privileges and Immunities" as an Antebellum Term of Art, 98 Geo. L.J. 1241, 1256-1257 (2010) (surveying antebellum usages of these terms).

2

The group of rights-bearers to whom the Privileges or Immunities Clause applies is, of course, "citizens." By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens' inalienable rights, and that these rights were considered "privileges" or "immunities" of citizenship.

This tradition begins with our country's English roots. Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A Documentary History 8-16, 19-21, 41-46 (1971) (hereinafter Schwartz). These fundamental rights, according to the English tradition, belonged to all people but became legally enforceable only when recognized in legal texts, including acts of Parliament and the decisions of common-law judges. See B. Bailyn, The Ideological Origins of the American Revolution 77-79 (1967). These rights included many that later would be set forth in our Federal Bill of Rights, such as the right to petition for redress of grievances, the right to a jury trial, and the right of "Protestants" to "have arms for their defence." English Bill of Rights (1689), reprinted in 1 Schwartz 41, 43.

As English subjects, the colonists considered themselves to be vested with the same fundamental rights as other Englishmen. They consistently claimed the rights of English citizenship in their founding documents, repeatedly referring to these rights as "privileges" and "immunities." For example, a Maryland law provided that

*3065 "[A]ll the Inhabitants of this Province being Christians (Slaves excepted) Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any natural born subject of England hath or ought to have or enjoy in the Realm of England.. . ." Md. Act for the Liberties of the People (1639), in id., at 68 (emphasis added).3

As tensions between England and the Colonies increased, the colonists adopted protest resolutions reasserting their claim to the inalienable rights of Englishmen. Again, they used the terms "privileges" and "immunities" to describe these rights. As the Massachusetts Resolves declared:

"Resolved, That there are certain essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind—Therefore.. . . .

"Resolved, That no Man can justly take the Property of another without his Consent: And that upon this original Principle the Right of Representation. . . is evidently founded. . . . Resolved, That this inherent Right, together with all other, essential Rights, Liberties, Privileges and Immunities of the People of Great Britain, have been fully confirmed to them by Magna Charta." The Massachusetts Resolves (Oct. 29, 1765), reprinted in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764-1766, p. 56 (E. Morgan ed.1959) (some emphasis added).4

*3066 In keeping with this practice, the First Continental Congress declared in 1774 that the King had wrongfully denied the colonists "the rights, liberties, and immunities of free and natural-born subjects . . . within the realm of England." 1 Journals of the Continental Congress 1774-1789, p. 68 (1904). In an address delivered to the inhabitants of Quebec that same year, the Congress described those rights as including the "great" "right[s]" of "trial by jury," "Habeas Corpus," and "freedom of the press." Address of the Continental Congress to the Inhabitants of Quebec (1774), reprinted in 1 Schwartz 221-223.

After declaring their independence, the newly formed States replaced their colonial charters with constitutions and state bills of rights, almost all of which guaranteed the same fundamental rights that the former colonists previously had claimed by virtue of their English heritage. See, e.g., Pa. Declaration of Rights (1776), reprinted in 5 Thorpe 3081-3084 (declaring that "all men are born equally free and independent, and have certain natural, inherent and inalienable rights," including the "right to worship Almighty God according to the dictates of their own consciences" and the "right to bear arms for the defence of themselves and the state").<5

Several years later, the Founders amended the Constitution to expressly protect many of the same fundamental rights against interference by the Federal Government. Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in these amendments as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution's text. See, e.g., 1 Annals of Cong. 431-432, 436-437, 440-442 (1834) (statement of Rep. Madison) (proposing Bill of Rights in the first Congress); The Federalist No. 84, pp. 531-533 (B. Wright ed. 1961) (A.Hamilton); see also Heller, 554 U.S., at ___, 128 S.Ct., at 2797 ("[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right"). The Court's subsequent decision in Barron, however, made plain that the codification of these rights in the Bill made them legally enforceable only against the Federal Government, not the States. See 7 Pet., at 247.

3

Even though the Bill of Rights did not apply to the States, other provisions of the Constitution did limit state interference with individual rights. Article IV, § 2, cl. 1 provides that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The text of this provision resembles the Privileges or Immunities Clause, and it can be assumed that the public's understanding of the latter was informed by its understanding of the former.

Article IV, § 2 was derived from a similar clause in the Articles of Confederation, and reflects the dual citizenship the Constitution provided to all Americans after replacing that "league" of separate sovereign States. Gibbons v. Ogden, 9 Wheat. 1, 187, 6 L.Ed. 23 (1824); see 3 J. Story, Commentaries on the Constitution of the United States § 1800, p. 675 (1833). By virtue of a person's citizenship in a particular State, he was guaranteed whatever rights and liberties that State's constitution *3067 and laws made available. Article IV, § 2 vested citizens of each State with an additional right: the assurance that they would be afforded the "privileges and immunities" of citizenship in any of the several States in the Union to which they might travel.

What were the "Privileges and Immunities of Citizens in the several States"? That question was answered perhaps most famously by Justice Bushrod Washington sitting as Circuit Justice in Corfield v. Coryell, 6 F. Cas. 546, 551-552 (No. 3,230) (CC ED Pa. 1825). In that case, a Pennsylvania citizen claimed that a New Jersey law prohibiting nonresidents from harvesting oysters from the State's waters violated Article IV, § 2 because it deprived him, as an out-of-state citizen, of a right New Jersey availed to its own citizens. Id., at 550. Justice Washington rejected that argument, refusing to "accede to the proposition" that Article IV, § 2 entitled "citizens of the several states . . . to participate in all the rights which belong exclusively to the citizens of any other particular state." Id., at 552 (emphasis added). In his view, Article IV, § 2 did not guarantee equal access to all public benefits a State might choose to make available to its citizens. See id., at 552. Instead, it applied only to those rights "which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments." Id., at 551 (emphasis added). Other courts generally agreed with this principle. See, e.g., Abbot v. Bayley, 23 Mass. 89, 92-93 (1827) (noting that the "privileges and immunities" of citizens in the several States protected by Article IV, § 2 are "qualified and not absolute" because they do not grant a traveling citizen the right of "suffrage or of eligibility to office" in the State to which he travels).

When describing those "fundamental" rights, Justice Washington thought it "would perhaps be more tedious than difficult to enumerate" them all, but suggested that they could "be all comprehended under" a broad list of "general heads," such as "[p]rotection by the government," "the enjoyment of life and liberty, with the right to acquire and possess property of every kind," "the benefit of the writ of habeas corpus," and the right of access to "the courts of the state," among others.6 Corfield, supra, at 551-552.

Notably, Justice Washington did not indicate whether Article IV, § 2 required States to recognize these fundamental rights in their own citizens and thus in sojourning citizens alike, or whether the Clause simply prohibited the States from discriminating against sojourning citizens with respect to whatever fundamental rights state law happened to recognize. On this question, the weight of legal authorities at the time of Reconstruction indicated *3068 that Article IV, § 2 prohibited States from discriminating against sojourning citizens when recognizing fundamental rights, but did not require States to recognize those rights and did not prescribe their content. The highest courts of several States adopted this view, see, e.g., Livingston v. Van Ingen, 9 Johns. 507, 561 (N.Y.Sup.Ct.1812) (Yates, J.); id., at 577 (Kent, J.); Campbell v. Morris, 3 H. & McH. 535, 553-554 (Md.Gen.Ct.1797) (Chase, J.), as did several influential treatise-writers, see T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the State of the American Union 15-16, and n. 3 (1868) (reprint 1972) (describing Article IV, § 2 as designed "to prevent discrimination by the several States against the citizens and public proceedings of other States"); 2 J. Kent, Commentaries on American Law 35 (11th ed. 1867) (stating that Article IV, § 2 entitles sojourning citizens "to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other"). This Court adopted the same conclusion in a unanimous opinion just one year after the Fourteenth Amendment was ratified. See Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869).

* * *

The text examined so far demonstrates three points about the meaning of the Privileges or Immunities Clause in § 1. First, "privileges" and "immunities" were synonyms for "rights." Second, both the States and the Federal Government had long recognized the inalienable rights of their citizens. Third, Article IV, § 2 of the Constitution protected traveling citizens against state discrimination with respect to the fundamental rights of state citizenship.

Two questions still remain, both provoked by the textual similarity between § 1's Privileges or Immunities Clause and Article IV, § 2. The first involves the nature of the rights at stake: Are the privileges or immunities of "citizens of the United States" recognized by § 1 the same as the privileges and immunities of "citizens in the several States" to which Article IV, § 2 refers? The second involves the restriction imposed on the States: Does § 1, like Article IV, § 2, prohibit only discrimination with respect to certain rights if the State chooses to recognize them, or does it require States to recognize those rights? I address each question in turn.

B

I start with the nature of the rights that § 1's Privileges or Immunities Clause protects. Section 1 overruled Dred Scott's holding that blacks were not citizens of either the United States or their own State and, thus, did not enjoy "the privileges and immunities of citizens" embodied in the Constitution. 19 How., at 417. The Court in Dred Scott did not distinguish between privileges and immunities of citizens of the United States and citizens in the several States, instead referring to the rights of citizens generally. It did, however, give examples of what the rights of citizens were—the constitutionally enumerated rights of "the full liberty of speech" and the right "to keep and carry arms." Ibid.

Section 1 protects the rights of citizens "of the United States" specifically. The evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution, including the right to keep and bear arms.

1

Nineteenth-century treaties through which the United States acquired territory from other sovereigns routinely promised inhabitants of the newly acquired territories *3069 that they would enjoy all of the "rights," "privileges," and "immunities" of United States citizens. See, e.g., Treaty of Amity, Settlement, and Limits, Art. 6, Feb. 22, 1819, 8 Stat. 256-258, T.S. No. 327 (entered into force Feb. 19, 1821) (cession of Florida) ("The inhabitants of the territories which his Catholic Majesty cedes to the United States, by this Treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States" (emphasis added)).7

Commentators of the time explained that the rights and immunities of "citizens of the United States" recognized in these treaties "undoubtedly mean[t] those privileges that are common to all citizens of this republic." Marcus, An Examination of the Expediency and Constitutionality of Prohibiting Slavery in the State of Missouri 17 (1819). It is therefore altogether unsurprising that several of these treaties identify liberties enumerated in the Constitution as privileges and immunities common to all United States citizens.

For example, the Louisiana Cession Act of 1803, which codified a treaty between the United States and France culminating in the Louisiana Purchase, provided that

"The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyments of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess." Treaty Between the United States of America and the French Republic, Art. III, Apr. 30, 1803, 8 Stat. 202, T.S. No. 86 (emphasis added).8

*3070 The Louisiana Cession Act reveals even more about the privileges and immunities of United States citizenship because it provoked an extensive public debate on the meaning of that term. In 1820, when the Missouri Territory (which the United States acquired through the Cession Act) sought to enter the Union as a new State, a debate ensued over whether to prohibit slavery within Missouri as a condition of its admission. Some congressmen argued that prohibiting slavery in Missouri would deprive its inhabitants of the "privileges and immunities" they had been promised by the Cession Act. See, e.g., 35 Annals of Cong. 1083 (1855) (remarks of Kentucky Rep. Hardin). But those who opposed slavery in Missouri argued that the right to hold slaves was merely a matter of state property law, not one of the privileges and immunities of United States citizenship guaranteed by the Act.9

Daniel Webster was among the leading proponents of the antislavery position. In his "Memorial to Congress," Webster argued that "[t]he rights, advantages and immunities here spoken of [in the Cession Act] must . . . be such as are recognized or communicated by the Constitution of the United States," not the "rights, advantages and immunities, derived exclusively from the State governments. . . ." D. Webster, A Memorial to the Congress of the United States on the Subject of Restraining the Increase of Slavery in New States to be Admitted into the Union 15 (Dec. 15, 1819) (emphasis added). "The obvious meaning" of the Act, in Webster's view, was that "the rights derived under the federal Constitution shall be enjoyed by the inhabitants of [the territory]." Id., at 15-16 (emphasis added). In other words, Webster articulated a distinction between the rights of United States citizenship and the rights of state citizenship, and argued that the former included those rights "recognized or communicated by the Constitution." Since the right to hold slaves was not mentioned in the Constitution, it was not a right of federal citizenship.

Webster and his allies ultimately lost the debate over slavery in Missouri and the territory was admitted as a slave State as part of the now-famous Missouri Compromise. Missouri Enabling Act of March 6, 1820, ch. 22, § 8, 3 Stat. 548. But their arguments continued to inform public understanding of the privileges and immunities of United States citizenship. In 1854, Webster's Memorial was republished in a pamphlet discussing the Nation's next major debate on slavery—the proposed repeal of the Missouri Compromise through the Kansas-Nebraska Act, see The Nebraska Question: Comprising Speeches in the United States Senate: Together with the History of the Missouri Compromise 9-12 (1854). It was published again in 1857 in a collection of famous American speeches. See The Political Text-Book, or Encyclopedia: Containing Everything Necessary for the Reference of the Politicians and Statesmen of the United States 601-604 (M. Cluskey ed. 1857); see also Lash, 98 Geo. L. J., at 1294-1296 (describing Webster's arguments and their influence).

*3071 2

Evidence from the political branches in the years leading to the Fourteenth Amendment's adoption demonstrates broad public understanding that the privileges and immunities of United States citizenship included rights set forth in the Constitution, just as Webster and his allies had argued. In 1868, President Andrew Johnson issued a proclamation granting amnesty to former Confederates, guaranteeing "to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason . . . with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof." 15 Stat. 712.

Records from the 39th Congress further support this understanding.

a

After the Civil War, Congress established the Joint Committee on Reconstruction to investigate circumstances in the Southern States and to determine whether, and on what conditions, those States should be readmitted to the Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30 (1865) (hereinafter 39th Cong. Globe); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 57 (1986) (hereinafter Curtis). That Committee would ultimately recommend the adoption of the Fourteenth Amendment, justifying its recommendation by submitting a report to Congress that extensively catalogued the abuses of civil rights in the former slave States and argued that "adequate security for future peace and safety. . . can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic." See Report of the Joint Committee on Reconstruction, S.Rep. No. 112, 39th Cong., 1st Sess., p. 15 (1866); H. R. Rep. No. 30, 39th Cong., 1st Sess., p. XXI (1866).

As the Court notes, the Committee's Report "was widely reprinted in the press and distributed by members of the 39th Congress to their constituents." Ante, at 3039; B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 264-265 (1914) (noting that 150,000 copies of the Report were printed and that it was widely distributed as a campaign document in the election of 1866). In addition, newspaper coverage suggests that the wider public was aware of the Committee's work even before the Report was issued. For example, the Fort Wayne Daily Democrat (which appears to have been unsupportive of the Committee's work) paraphrased a motion instructing the Committee to

"enquire into [the] expediency of amending the Constitution of the United States so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument." The Nigger Congress!, Fort Wayne Daily Democrat, Feb. 1, 1866, p. 4 (emphasis added).

b

Statements made by Members of Congress leading up to, and during, the debates on the Fourteenth Amendment point in the same direction. The record of these debates has been combed before. See Adamson v. California, 332 U.S. 46, 92-110, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (Appendix to dissenting opinion of Black, J.) (concluding that the debates support the conclusion that § 1 was understood to incorporate the Bill of Rights against the States); ante, at 3033, n. 9, 3040, n. 23, (opinion of the Court) (counting the debates among other evidence that § 1 applies the Second Amendment against the States). Before considering that record *3072 here, it is important to clarify its relevance. When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean.

(1)

Three speeches stand out as particularly significant. Representative John Bingham, the principal draftsman of § 1, delivered a speech on the floor of the House in February 1866 introducing his first draft of the provision. Bingham began by discussing Barron and its holding that the Bill of Rights did not apply to the States. He then argued that a constitutional amendment was necessary to provide "an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person." 39th Cong. Globe 1089-1090 (1866). Bingham emphasized that § 1 was designed "to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It `hath that extent—no more.'" Id., at 1088.

Bingham's speech was printed in pamphlet form and broadly distributed in 1866 under the title, "One Country, One Constitution, and One People," and the subtitle, "In Support of the Proposed Amendment to Enforce the Bill of Rights."10 Newspapers also reported his proposal, with the New York Times providing particularly extensive coverage, including a full reproduction of Bingham's first draft of § 1 and his remarks that a constitutional amendment to "enforc[e]" the "immortal bill of rights" was "absolutely essential to American nationality." N.Y. Times, Feb. 27, 1866, p. 8.

Bingham's first draft of § 1 was different from the version ultimately adopted. Of particular importance, the first draft granted Congress the "power to make all laws . . . necessary and proper to secure" the "citizens of each State all privileges and immunities of citizens in the several States," rather than restricting state power to "abridge" the privileges or immunities of citizens of the United States.11 39th Cong. Globe 1088.

That draft was met with objections, which the Times covered extensively. A *3073 front-page article hailed the "Clear and Forcible Speech" by Representative Robert Hale against the draft, explaining—and endorsing—Hale's view that Bingham's proposal would "confer upon Congress all the rights and power of legislation now reserved to the States" and would "in effect utterly obliterate State rights and State authority over their own internal affairs."12 N.Y. Times, Feb. 28, 1866, p. 1.

Critically, Hale did not object to the draft insofar as it purported to protect constitutional liberties against state interference. Indeed, Hale stated that he believed (incorrectly in light of Barron) that individual rights enumerated in the Constitution were already enforceable against the States. See 39th Cong. Globe 1064 ("I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected"); see N.Y. Times, Feb. 28, 1866, at 1. Hale's misperception was not uncommon among members of the Reconstruction generation. See infra, at 3047-3048. But that is secondary to the point that the Times' coverage of this debate over § 1's meaning suggests public awareness of its main contours —i.e., that § 1 would, at a minimum, enforce constitutionally enumerated rights of United States citizens against the States.

Bingham's draft was tabled for several months. In the interim, he delivered a second well-publicized speech, again arguing that a constitutional amendment was required to give Congress the power to enforce the Bill of Rights against the States. That speech was printed in pamphlet form, see Speech of Hon. John A. Bingham, of Ohio, on the Civil Rights Bill, Mar. 9, 1866 (Cong.Globe); see 39th Cong. Globe 1837 (remarks of Rep. Lawrence) (noting that the speech was "extensively published"), and the New York Times covered the speech on its front page. Thirty-Ninth Congress, N.Y. Times, Mar. 10, 1866, p. 1.

By the time the debates on the Fourteenth Amendment resumed, Bingham had amended his draft of § 1 to include the text of the Privileges or Immunities Clause that was ultimately adopted. Senator Jacob Howard introduced the new draft on the floor of the Senate in the third speech relevant here. Howard explained that the Constitution recognized "a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, . . . some by the first eight amendments of the Constitution," and that "there is no power given in the Constitution to enforce and to carry out any of these guarantees" against the States. 39th Cong. Globe 2765. Howard then stated that "the great object" of § 1 was to "restrain the power of the States and compel them at all times to respect these great fundamental guarantees." Id., at 2766. Section 1, he indicated, imposed "a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States." Id., at 2765.

In describing these rights, Howard explained that they included "the privileges *3074 and immunities spoken of" in Article IV, § 2. Id., at 2765. Although he did not catalogue the precise "nature" or "extent" of those rights, he thought "Corfield v. Coryell" provided a useful description. Howard then submitted that

"[t]o these privileges and immunities, whatever they may be—. . . should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, [and] . . . the right to keep and to bear arms." Ibid. (emphasis added).

News of Howard's speech was carried in major newspapers across the country, including the New York Herald, see N.Y. Herald, May 24, 1866, p. 1, which was the best-selling paper in the Nation at that time, see A. Amar, The Bill of Rights: Creation and Reconstruction 187 (1998) (hereinafter Amar).13 The New York Times carried the speech as well, reprinting a lengthy excerpt of Howard's remarks, including the statements quoted above. N.Y. Times, May 24, 1866, p. 1. The following day's Times editorialized on Howard's speech, predicting that "[t]o this, the first section of the amendment, the Union party throughout the country will yield a ready acquiescence, and the South could offer no justifiable resistance," suggesting that Bingham's narrower second draft had not been met with the same objections that Hale had raised against the first. N.Y. Times, May 25, 1866, p. 4.

As a whole, these well-circulated speeches indicate that § 1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.

(2)

When read against this backdrop, the civil rights legislation adopted by the 39th Congress in 1866 further supports this view. Between passing the Thirteenth Amendment—which outlawed slavery alone—and the Fourteenth Amendment, Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that "all persons born in the United States" were "citizens of the United States" and that "such citizens, of every race and color, . . . shall have the same right" to, among other things, "full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens." Ch. 31, § 1, 14 Stat. 27.

Both proponents and opponents of this Act described it as providing the "privileges" of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the "the late slaveholding States" had enacted laws "depriving persons of African descent of privileges which are essential to freemen," including "prohibit[ing] any negro or mulatto from having fire-arms" and stating that "[t]he purpose of the bill under consideration is to destroy all these discriminations"); id., at 1266-1267 (remarks *3075 of Rep. Raymond) (opposing the Act, but recognizing that to "[m]ake a colored man a citizen of the United States" would guarantee to him, inter alia, "a defined status . . . a right to defend himself and his wife and children; a right to bear arms").

Three months later, Congress passed the Freedmen's Bureau Act, which also entitled all citizens to the "full and equal benefit of all laws and proceedings concerning personal liberty" and "personal security." Act of July 16, 1866, ch. 200, § 14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act "includ[ed] the constitutional right to bear arms." Ibid.

(3)

There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition. That said, the record of the debates—like most legislative history—is less than crystal clear. In particular, much ambiguity derives from the fact that at least several Members described § 1 as protecting the privileges and immunities of citizens "in the several States," harkening back to Article IV, § 2. See supra, at 3041 (describing Sen. Howard's speech). These statements can be read to support the view that the Privileges or Immunities Clause protects some or all the fundamental rights of "citizens" described in Corfield. They can also be read to support the view that the Privileges or Immunities Clause, like Article IV, § 2, prohibits only state discrimination with respect to those rights it covers, but does not deprive States of the power to deny those rights to all citizens equally.

I examine the rest of the historical record with this understanding. But for purposes of discerning what the public most likely thought the Privileges or Immunities Clause to mean, it is significant that the most widely publicized statements by the legislators who voted on § 1—Bingham, Howard, and even Hale—point unambiguously toward the conclusion that the Privileges or Immunities Clause enforces at least those fundamental rights enumerated in the Constitution against the States, including the Second Amendment right to keep and bear arms.

3

Interpretations of the Fourteenth Amendment in the period immediately following its ratification help to establish the public understanding of the text at the time of its adoption.

Some of these interpretations come from Members of Congress. During an 1871 debate on a bill to enforce the Fourteenth Amendment, Representative Henry Dawes listed the Constitution's first eight Amendments, including "the right to keep and bear arms," before explaining that after the Civil War, the country "gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens" who formerly were slaves. Cong. Globe, 42d Cong., 1st Sess., 475-476 (1871). "It is all these," Dawes explained, "which are comprehended in the words `American citizen.'" Ibid.; see also id., at 334 (remarks of Rep. Hoar) (stating that the Privileges or Immunities Clause referred to those rights "declared to belong to the citizen by the Constitution itself"). Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities *3076 Clause protected constitutionally enumerated individual rights. See 2 Cong. Rec. 384-385 (1874) (remarks of Rep. Mills) (opposing enforcement law, but acknowledging, in referring to the Bill of Rights, that "[t]hese first amendments and some provisions of the Constitution of like import embrace the `privileges and immunities' of citizenship as set forth in article 4, section 2 of the Constitution and in the fourteenth amendment" (emphasis added)); see Curtis 166-170 (collecting examples).

Legislation passed in furtherance of the Fourteenth Amendment demonstrates even more clearly this understanding. For example, Congress enacted the Civil Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States," and which is codified in the still-existing 42 U.S.C. § 1983. That statute prohibits state officials from depriving citizens of "any rights, privileges, or immunities secured by the Constitution." Rev. Stat.1979, 42 U.S.C. § 1983 (emphasis added). Although the Judiciary ignored this provision for decades after its enactment, this Court has come to interpret the statute, unremarkably in light of its text, as protecting constitutionally enumerated rights. Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

A Federal Court of Appeals decision written by a future Justice of this Court adopted the same understanding of the Privileges or Immunities Clause. See, e.g., United States v. Hall, 26 F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) ("We think, therefore, that the . . . rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States"). In addition, two of the era's major constitutional treatises reflected the understanding that § 1 would protect constitutionally enumerated rights from state abridgment.14 A third such treatise unambiguously indicates that the Privileges or Immunities Clause accomplished this task. G. Paschal, The Constitution of the United States 290 (1868) (explaining that the rights listed in § 1 had "already been guarantied" by Article IV and the Bill of Rights, but that "[t]he new feature declared" by § 1 was that these rights, "which had been construed to apply only to the national government, are thus imposed upon the States").

Another example of public understanding comes from United States Attorney Daniel Corbin's statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and declared:

"[T]he fourteenth amendment changes all that theory, and lays the same restriction upon the States that before lay upon the Congress of the United States—that, as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. The right to keep and bear arms is included in the fourteenth amendment, *3077 under `privileges and immunities.'" Proceedings in the Ku Klux Trials at Columbia, S. C., in the United States Circuit Court, November Term, 1871, p. 147 (1872).

* * *

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. See ante, at 3038-3044. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.

C

The next question is whether the Privileges or Immunities Clause merely prohibits States from discriminating among citizens if they recognize the Second Amendment's right to keep and bear arms, or whether the Clause requires States to recognize the right. The municipal respondents, Chicago and Oak Park, argue for the former interpretation. They contend that the Second Amendment, as applied to the States through the Fourteenth, authorizes a State to impose an outright ban on handgun possession such as the ones at issue here so long as a State applies it to all citizens equally.15 The Court explains why this antidiscrimination-only reading of § 1 as a whole is "implausible." Ante, at 3042-3043 (citing Brief for Municipal Respondents 64). I agree, but because I think it is the Privileges or Immunities Clause that applies this right to the States, I must explain why this Clause in particular protects against more than just state discrimination, and in fact establishes a minimum baseline of rights for all American citizens.

1

I begin, again, with the text. The Privileges or Immunities Clause opens with the command that "No State shall" abridge the privileges or immunities of citizens of the United States. Amdt. 14, § 1 (emphasis added). The very same phrase opens Article I, § 10 of the Constitution, which prohibits the States from "pass[ing] any Bill of Attainder" or "ex post facto Law," among other things. Article I, § 10 is one of the few constitutional provisions that limits state authority. In Barron, when Chief Justice Marshall interpreted the Bill of Rights as lacking "plain and intelligible language" restricting state power to infringe upon individual liberties, he pointed to Article I, § 10 as an example of text that would have accomplished that task. 7 Pet., at 250. Indeed, Chief Justice Marshall would later describe Article I, § 10 as "a bill of rights for the people of each state." Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162 (1810). Thus, the fact that the Privileges or Immunities Clause uses the command "[n]o State shall"—which Article *3078 IV, § 2 does not—strongly suggests that the former imposes a greater restriction on state power than the latter.

This interpretation is strengthened when one considers that the Privileges or Immunities Clause uses the verb "abridge," rather than "discriminate," to describe the limit it imposes on state authority. The Webster's dictionary in use at the time of Reconstruction defines the word "abridge" to mean "[t]o deprive; to cut off; . . . as, to abridge one of his rights." Webster, An American Dictionary of the English Language, at 6. The Clause is thus best understood to impose a limitation on state power to infringe upon pre-existing substantive rights. It raises no indication that the Framers of the Clause used the word "abridge" to prohibit only discrimination.

This most natural textual reading is underscored by a well-publicized revision to the Fourteenth Amendment that the Reconstruction Congress rejected. After several Southern States refused to ratify the Amendment, President Johnson met with their Governors to draft a compromise. N.Y. Times, Feb. 5, 1867, p. 5. Their proposal eliminated Congress' power to enforce the Amendment (granted in § 5), and replaced the Privileges or Immunities Clause in § 1 with the following:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States in which they reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Draft reprinted in 1 Documentary History of Reconstruction 240 (W. Fleming ed.1950) (hereinafter Fleming).

Significantly, this proposal removed the "[n]o State shall" directive and the verb "abridge" from § 1, and also changed the class of rights to be protected from those belonging to "citizens of the United States" to those of the "citizens in the several States." This phrasing is materially indistinguishable from Article IV, § 2, which generally was understood as an antidiscrimination provision alone. See supra, at 3066-3068. The proposal thus strongly indicates that at least the President of the United States and several southern Governors thought that the Privileges or Immunities Clause, which they unsuccessfully tried to revise, prohibited more than just state-sponsored discrimination.

2

The argument that the Privileges or Immunities Clause prohibits no more than discrimination often is followed by a claim that public discussion of the Clause, and of § 1 generally, was not extensive. Because of this, the argument goes, § 1 must not have been understood to accomplish such a significant task as subjecting States to federal enforcement of a minimum baseline of rights. That argument overlooks critical aspects of the Nation's history that underscored the need for, and wide agreement upon, federal enforcement of constitutionally enumerated rights against the States, including the right to keep and bear arms.

a

I turn first to public debate at the time of ratification. It is true that the congressional debates over § 1 were relatively brief. It is also true that there is little evidence of extensive debate in the States. Many state legislatures did not keep records of their debates, and the few records that do exist reveal only modest discussion. See Curtis 145. These facts are not surprising.

First, however consequential we consider the question today, the nationalization of constitutional rights was not the most *3079 controversial aspect of the Fourteenth Amendment at the time of its ratification. The Nation had just endured a tumultuous civil war, and §§ 2, 3, and 4—which reduced the representation of States that denied voting rights to blacks, deprived most former Confederate officers of the power to hold elective office, and required States to disavow Confederate war debts— were far more polarizing and consumed far more political attention. See Wildenthal 1600; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866-1868, 30 Whittier L.Rev. 695, 699 (2009).

Second, the congressional debates on the Fourteenth Amendment reveal that many representatives, and probably many citizens, believed that the Thirteenth Amendment, the 1866 Civil Rights legislation, or some combination of the two, had already enforced constitutional rights against the States. Justice Black's dissent in Adamson chronicles this point in detail. 332 U.S., at 107-108, 67 S.Ct. 1672 (Appendix to dissenting opinion). Regardless of whether that understanding was accurate as a matter of constitutional law, it helps to explain why Congressmen had little to say during the debates about § 1. See ibid.

Third, while Barron made plain that the Bill of Rights was not legally enforceable against the States, see supra, at 3059, the significance of that holding should not be overstated. Like the Framers, see supra, at 3066, many 19th-century Americans understood the Bill of Rights to declare inalienable rights that pre-existed all government. Thus, even though the Bill of Rights technically applied only to the Federal Government, many believed that it declared rights that no legitimate government could abridge.

Chief Justice Henry Lumpkin's decision for the Georgia Supreme Court in Nunn v. State, 1 Ga. 243 (1846), illustrates this view. In assessing state power to regulate firearm possession, Lumpkin wrote that he was "aware that it has been decided, that [the Second Amendment], like other amendments adopted at the same time, is a restriction upon the government of the United States, and does not extend to the individual States." Id., at 250. But he still considered the right to keep and bear arms as "an unalienable right, which lies at the bottom of every free government," and thus found the States bound to honor it. Ibid. Other state courts adopted similar positions with respect to the right to keep and bear arms and other enumerated rights.16 Some courts even suggested that the protections in the Bill of Rights were legally enforceable against the States, Barron notwithstanding.17 A prominent treatise of the era took the same position. W. Rawle, A View of the Constitution of the United States of America 124-125 (2d ed. 1829) (reprint 2009) (arguing that certain of the first eight Amendments "appl[y] to the state legislatures" because those Amendments "form parts of the declared rights of the people, of which neither the state powers nor those of the Union can ever deprive them"); id., at 125-126 (describing the Second Amendment "right of the people to keep and bear arms" as "a restraint on both" Congress and the States); see also Heller, 554 U.S., at ___, *3080 128 S.Ct. at 2805-2806 (describing Rawle's treatise as "influential"). Certain abolitionist leaders adhered to this view as well. Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the "natural right of all men `to keep and bear arms' for their personal defence," which he believed the Constitution "prohibit[ed] both Congress and the State governments from infringing." L. Spooner, The Unconstitutionality of Slavery 98 (1860).

In sum, some appear to have believed that the Bill of Rights did apply to the States, even though this Court had squarely rejected that theory. See, e.g., supra, at 3072-3073 (recounting Rep. Hale's argument to this effect). Many others believed that the liberties codified in the Bill of Rights were ones that no State should abridge, even though they understood that the Bill technically did not apply to States. These beliefs, combined with the fact that most state constitutions recognized many, if not all, of the individual rights enumerated in the Bill of Rights, made the need for federal enforcement of constitutional liberties against the States an afterthought. See ante, at ___ (opinion of the Court) (noting that, "[i]n 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms"). That changed with the national conflict over slavery.

b

In the contentious years leading up to the Civil War, those who sought to retain the institution of slavery found that to do so, it was necessary to eliminate more and more of the basic liberties of slaves, free blacks, and white abolitionists. Congressman Tobias Plants explained that slaveholders "could not hold [slaves] safely where dissent was permitted," so they decided that "all dissent must be suppressed by the strong hand of power." 39th Cong. Globe 1013. The measures they used were ruthless, repressed virtually every right recognized in the Constitution, and demonstrated that preventing only discriminatory state firearms restrictions would have been a hollow assurance for liberty. Public reaction indicates that the American people understood this point.

The overarching goal of pro-slavery forces was to repress the spread of abolitionist thought and the concomitant risk of a slave rebellion. Indeed, it is difficult to overstate the extent to which fear of a slave uprising gripped slaveholders and dictated the acts of Southern legislatures. Slaves and free blacks represented a substantial percentage of the population and posed a severe threat to Southern order if they were not kept in their place. According to the 1860 Census, slaves represented one quarter or more of the population in 11 of the 15 slave States, nearly half the population in Alabama, Florida, Georgia, and Louisiana, and more than 50% of the population in Mississippi and South Carolina. Statistics of the United States (Including Mortality, Property, &c.;,) in 1860, The Eighth Census 336-350 (1866).

The Southern fear of slave rebellion was not unfounded. Although there were others, two particularly notable slave uprisings heavily influenced slaveholders in the South. In 1822, a group of free blacks and slaves led by Denmark Vesey planned a rebellion in which they would slay their masters and flee to Haiti. H. Aptheker, American Negro Slave Revolts 268-270 (1983). The plan was foiled, leading to the swift arrest of 130 blacks, and the execution of 37, including Vesey. Id., at 271. Still, slaveowners took notice—it was reportedly feared that as many as 6,600 to 9,000 slaves and free blacks were involved in the plot. Id., at 272. A few years later, *3081 the fear of rebellion was realized. An uprising led by Nat Turner took the lives of at least 57 whites before it was suppressed. Id., at 300-302.

The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense. Teaching slaves to read (even the Bible) was a criminal offense punished severely in some States. See K. Stampp, The Peculiar Institution: Slavery in the Ante-bellum South 208, 211 (1956). Virginia made it a crime for a member of an "abolition" society to enter the State and argue "that the owners of slaves have no property in the same, or advocate or advise the abolition of slavery." 1835-1836 Va. Acts ch. 66, p. 44. Other States prohibited the circulation of literature denying a master's right to property in his slaves and passed laws requiring postmasters to inspect the mails in search of such material. C. Eaton, The Freedom-of-Thought Struggle in the Old South 118-143, 199-200 (1964).

Many legislatures amended their laws prohibiting slaves from carrying firearms18 to apply the prohibition to free blacks as well. See, e.g., Act of Dec. 23, 1833, § 7, 1833 Ga. Acts pp. 226, 228 (declaring that "it shall not be lawful for any free person of colour in this state, to own, use, or carry fire arms of any description whatever"); H. Aptheker, Nat Turner's Slave Rebellion 74-76, 83-94 (1966) (discussing similar Maryland and Virginia statutes); see also Act of Mar. 15, 1852, ch. 206, 1852 Miss. Laws p. 328 (repealing laws allowing free blacks to obtain firearms licenses); Act of Jan. 31, 1831, 1831 Fla. Acts p. 30 (same). Florida made it the "duty" of white citizen "patrol[s] to search negro houses or other suspected places, for fire arms." Act of Feb. 17, 1833, ch. 671, 1833 Fla. Acts pp. 26, 30. If they found any firearms, the patrols were to take the offending slave or free black "to the nearest justice of the peace," whereupon he would be "severely punished" by "whipping on the bare back, not exceeding thirty-nine lashes," unless he could give a "plain and satisfactory" explanation of how he came to possess the gun. Ibid.

Southern blacks were not alone in facing threats to their personal liberty and security during the antebellum era. Mob violence in many Northern cities presented dangers as well. Cottrol & Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 340 (1991) (hereinafter Cottrol) (recounting a July 1834 mob attack against "churches, homes, and businesses of white abolitionists and blacks" in New York that involved "upwards of twenty thousand people and required the intervention of the militia to suppress"); ibid. (noting an uprising in Boston nine years later in which a confrontation between a group of white sailors and four blacks led "a mob of several hundred whites" to "attac[k] and severely beat every black they could find").

c

After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, "[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, *3082 the snobs, and the male waiting-maids in Congress, were in hysterics." K. Stampp, The Era of Reconstruction, 1865-1877, p. 104 (1965) (hereinafter Era of Reconstruction).

As the Court explains, this fear led to "systematic efforts" in the "old Confederacy" to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. See ante, at 3038. Some States formally prohibited blacks from possessing firearms. Ante, at 3038-3039 (quoting 1865 Miss. Laws p. 165, § 1, reprinted in 1 Fleming 289). Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. See, e.g., La. Statute of 1865, reprinted in id., at 280. Additionally, "[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves." Ante, at 3039.

As the Court makes crystal clear, if the Fourteenth Amendment "had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African-Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers." Ante, at 3043. In the years following the Civil War, a law banning firearm possession outright "would have been nondiscriminatory only in the formal sense," for it would have "left firearms in the hands of the militia and local peace officers." Ibid.

Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified. The publicly circulated Report of the Joint Committee on Reconstruction extensively detailed these abuses, see ante, at 3038-3039 (collecting examples), and statements by citizens indicate that they looked to the Committee to provide a federal solution to this problem, see, e.g., 39th Cong. Globe 337 (remarks of Rep. Sumner) (introducing "a memorial from the colored citizens of the State of South Carolina" asking for, inter alia, "constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press").

One way in which the Federal Government responded was to issue military orders countermanding Southern arms legislation. See, e.g., Jan. 17, 1866, order from Major General D.E. Sickles, reprinted in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 37 (1871) ("The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed"). The significance of these steps was not lost on those they were designed to protect. After one such order was issued, The Christian Recorder, published by the African Methodist Episcopal Church, published the following editorial:

"`We have several times alluded to the fact that the Constitution of the United States, guaranties to every citizen the right to keep and bear arms.... All men, without the distinction of color, have the right to keep arms to defend their homes, families, or themselves.'

"We are glad to learn that [the] Commissioner for this State ... has given freedmen to understand that they have as good a right to keep fire arms as any other citizens. The Constitution of the United States is the supreme law of the land, and we will be governed by that at present." Right to Bear Arms, Christian Recorder (Phila.), Feb. 24, 1866, pp. 29-30.

The same month, The Loyal Georgian carried a letter to the editor asking "Have colored persons a right to own and carry *3083 fire arms?—A Colored Citizen." The editors responded as follows:

"Almost every day, we are asked questions similar to the above. We answer certainly you have the same right to own and carry fire arms that other citizens have. You are not only free but citizens of the United States and, as such, entitled to the same privileges granted to other citizens by the Constitution of the United States.

. . . . .

"... Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms and states that this right shall not be infringed.... All men, without distinction of color, have the right to keep arms to defend their homes, families or themselves." Letter to the Editor, Loyal Georgian (Augusta), Feb. 3, 1866, p. 3.

These statements are consistent with the arguments of abolitionists during the antebellum era that slavery, and the slave States' efforts to retain it, violated the constitutional rights of individuals—rights the abolitionists described as among the privileges and immunities of citizenship. See, e.g., J. Tiffany, Treatise on the Unconstitutionality of American Slavery 56 (1849) (reprint 1969) ("pledg[ing] ... to see that all the rights, privileges, and immunities, granted by the constitution of the United States, are extended to all"); id., at 99 (describing the "right to keep and bear arms" as one of those rights secured by "the constitution of the United States"). The problem abolitionists sought to remedy was that, under Dred Scott, blacks were not entitled to the privileges and immunities of citizens under the Federal Constitution and that, in many States, whatever inalienable rights state law recognized did not apply to blacks. See, e.g., Cooper v. Savannah, 4 Ga. 68, 72 (1848) (deciding, just two years after Chief Justice Lumpkin's opinion in Nunn recognizing the right to keep and bear arms, see supra, at 3079-3080, that "[f]ree persons of color have never been recognized here as citizens; they are not entitled to bear arms").

Section 1 guaranteed the rights of citizenship in the United States and in the several States without regard to race. But it was understood that liberty would be assured little protection if § 1 left each State to decide which privileges or immunities of United States citizenship it would protect. As Frederick Douglass explained before § 1's adoption, "the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together." In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79, 83-84 (J. Blassingame & J. McKivigan eds., 1991) (footnote omitted). "Notwithstanding the provision in the Constitution of the United States, that the right to keep and bear arms shall not be abridged," Douglass explained that "the black man has never had the right either to keep or bear arms." Id., at 84. Absent a constitutional amendment to enforce that right against the States, he insisted that "the work of the Abolitionists [wa]s not finished." Ibid.

This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that "[n]o State shall ... abridge" the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.19

*3084 III

My conclusion is contrary to this Court's precedents, which hold that the Second Amendment right to keep and bear arms is not a privilege of United States citizenship. See Cruikshank, 92 U.S., at 548-549, 551-553. I must, therefore, consider whether stare decisis requires retention of those precedents. As mentioned at the outset, my inquiry is limited to the right at issue here. Thus, I do not endeavor to decide in this case whether, or to what extent, the Privileges or Immunities Clause applies any other rights enumerated in the Constitution against the States.20 Nor do I suggest that the stare decisis considerations surrounding the application of the right to keep and bear arms against the States would be the same as those surrounding another right protected by the Privileges or Immunities Clause. I consider stare decisis only as it applies to the question presented here.

A

This inquiry begins with the Slaughter-House Cases. There, this Court upheld a Louisiana statute granting a monopoly on livestock butchering in and around the city of New Orleans to a newly incorporated company. 16 Wall. 36, 21 L.Ed. 394. Butchers excluded by the monopoly sued, claiming that the statute violated the Privileges or Immunities Clause because it interfered with their right to pursue and "exercise their trade." Id., at 60. This Court rejected the butchers' claim, holding that their asserted right was not a privilege or immunity of American citizenship, but one governed by the States alone. The Court held that the Privileges or Immunities Clause protected only rights of federal citizenship—those "which owe their existence to the Federal government, its National character, its Constitution, or its laws," id., at 79—and did not protect any of the rights of state citizenship, id., at 74. In other words, the Court defined the two sets of rights as mutually exclusive.

After separating these two sets of rights, the Court defined the rights of state citizenship as "embrac[ing] nearly every civil right for the establishment and protection of which organized government is instituted"—that is, all those rights listed in Corfield. 16 Wall., at 76 (referring to "those rights" that "Judge Washington" described). That left very few rights of *3085 federal citizenship for the Privileges or Immunities Clause to protect. The Court suggested a handful of possibilities, such as the "right of free access to [federal] seaports," protection of the Federal Government while traveling "on the high seas," and even two rights listed in the Constitution. Id., at 79 (noting "[t]he right to peaceably assemble" and "the privilege of the writ of habeas corpus"); see supra, at 3060. But its decision to interpret the rights of state and federal citizenship as mutually exclusive led the Court in future cases to conclude that constitutionally enumerated rights were excluded from the Privileges or Immunities Clause's scope. See Cruikshank, supra.

I reject that understanding. There was no reason to interpret the Privileges or Immunities Clause as putting the Court to the extreme choice of interpreting the "privileges and immunities" of federal citizenship to mean either all those rights listed in Corfield, or almost no rights at all. 16 Wall., at 76. The record is scant that the public understood the Clause to make the Federal Government "a perpetual censor upon all legislation of the States" as the Slaughter-House majority feared. Id., at 78. For one thing, Corfield listed the "elective franchise" as one of the privileges and immunities of "citizens of the several states," 6 F. Cas., at 552, yet Congress and the States still found it necessary to adopt the Fifteenth Amendment—which protects "[t]he right of citizens of the United States to vote"—two years after the Fourteenth Amendment's passage. If the Privileges or Immunities Clause were understood to protect every conceivable civil right from state abridgment, the Fifteenth Amendment would have been redundant.

The better view, in light of the States and Federal Government's shared history of recognizing certain inalienable rights in their citizens, is that the privileges and immunities of state and federal citizenship overlap. This is not to say that the privileges and immunities of state and federal citizenship are the same. At the time of the Fourteenth Amendment's ratification, States performed many more functions than the Federal Government, and it is unlikely that, simply by referring to "privileges or immunities," the Framers of § 1 meant to transfer every right mentioned in Corfield to congressional oversight. As discussed, "privileges" and "immunities" were understood only as synonyms for "rights." See supra, at 3063-3064. It was their attachment to a particular group that gave them content, and the text and history recounted here indicate that the rights of United States citizens were not perfectly identical to the rights of citizens "in the several States." Justice Swayne, one of the dissenters in Slaughter-House, made the point clear:

"The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection." 16 Wall., at 126 (emphasis added).

Because the privileges and immunities of American citizenship include rights enumerated in the Constitution, they overlap to at least some extent with the privileges and immunities traditionally recognized in citizens in the several States.

A separate question is whether the privileges and immunities of American citizenship include any rights besides those enumerated in the Constitution. The four *3086 dissenting Justices in Slaughter-House would have held that the Privileges or Immunities Clause protected the unenumerated right that the butchers in that case asserted. See id., at 83 (Field, J., dissenting); id., at 111 (Bradley, J., dissenting); id., at 124 (Swayne, J., dissenting). Because this case does not involve an unenumerated right, it is not necessary to resolve the question whether the Clause protects such rights, or whether the Court's judgment in Slaughter-House was correct.

Still, it is argued that the mere possibility that the Privileges or Immunities Clause may enforce unenumerated rights against the States creates "`special hazards'" that should prevent this Court from returning to the original meaning of the Clause.21 Post, at 3089-3090 (STEVENS, J., dissenting). Ironically, the same objection applies to the Court's substantive due process jurisprudence, which illustrates the risks of granting judges broad discretion to recognize individual constitutional rights in the absence of textual or historical guideposts. But I see no reason to assume that such hazards apply to the Privileges or Immunities Clause. The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application. The Constitution contains many provisions that require an examination of more than just constitutional text to determine whether a particular act is within Congress' power or is otherwise prohibited. See, e.g., Art. I, § 8, cl. 18 (Necessary and Proper Clause); Amdt. 8 (Cruel and Unusual Punishments Clause). When the inquiry focuses on what the ratifying era understood the Privileges or Immunities Clause to mean, interpreting it should be no more "hazardous" than interpreting these other constitutional provisions by using the same approach. To be sure, interpreting the Privileges or Immunities Clause may produce hard questions. But they will have the advantage of being questions the Constitution asks us to answer. I believe those questions are more worthy of this Court's attention—and far more likely to yield discernable answers— than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support.

Finding these impediments to returning to the original meaning overstated, I reject Slaughter-House insofar as it precludes any overlap between the privileges and immunities of state and federal citizenship. I next proceed to the stare decisis considerations surrounding the precedent that expressly controls the question presented here.

B

Three years after Slaughter-House, the Court in Cruikshank squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. See supra, at 3027-3028. Cruikshank is not a precedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities Clause are made evident by the preceding evidence of its original meaning, and I would reject the holding on that basis alone. But, the consequences of Cruikshank warrant mention as well.

*3087 Cruikshank's holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.

Take, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, "Pitchfork" Ben Tillman, later described this massacre with pride: "[T]he leading white men of Edgefield" had decided "to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifiable." S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and internal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.22

Organized terrorism like that perpetuated by Tillman and his cohorts proliferated in the absence of federal enforcement of constitutional rights. Militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces, and the '76 Association spread terror among blacks and white Republicans by breaking up Republican meetings, threatening political leaders, and whipping black militiamen. Era of Reconstruction, 199-200; Curtis 156. These groups raped, murdered, lynched, and robbed as a means of intimidating, and instilling pervasive fear in, those whom they despised. A. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction 28-46 (1995).

Although Congress enacted legislation to suppress these activities,23 Klan tactics remained a constant presence in the lives of Southern blacks for decades. Between 1882 and 1968, there were at least 3,446 reported lynchings of blacks in the South. Cottrol 351-352. They were tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process. Emmit Till, for example, was killed in 1955 for allegedly whistling at a white woman. S. Whitfield, A Death in the Delta: The Story of Emmett Till 15-31 (1988). The fates of other targets of mob violence were equally depraved. See, e.g., Lynched Negro and Wife Were First Mutilated, Vicksburg (Miss.) Evening Post, Feb. 8, 1904, reprinted in R. Ginzburg, 100 Years *3088 of Lynchings 63 (1988); Negro Shot Dead for Kissing His White Girlfriend, Chi. Defender, Feb. 31, 1915, in id., at 95 (reporting incident in Florida); La. Negro Is Burned Alive Screaming "I Didn't Do It," Cleveland Gazette, Dec. 13, 1914, in id., at 93 (reporting incident in Louisiana).

The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, "`[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.'" Church Burnings Follow Negro Agitator's Lynching, Chicago Defender, Sept. 6, 1919, in id., at 124. Sometimes, as in Cooper's case, self-defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. Ibid. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. See Cottrol, 354. The experience left him with a sense, "not `of powerlessness, but of the "possibilities of salvation"'" that came from standing up to intimidation. Ibid.

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank's contrary holding that warrants its retention.

* * *

I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

1

In the two decades after United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), was decided, this Court twice reaffirmed its holding that the Privileges or Immunities Clause does not apply the Second Amendment to the States. Presser v. Illinois, 116 U.S. 252, 266-267, 6 S.Ct. 580, 29 L.Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812 (1894).

2

See also 2 C. Richardson, A New Dictionary of the English Language 1512 (1839) (defining "privilege" as "an appropriate or peculiar law or rule or right; a peculiar immunity, liberty, or franchise"); 1 id., at 1056 (defining "immunity" as "[f]reedom or exemption, (from duties,) liberty, privilege"); The Philadelphia School Dictionary; or Expositor of the English Language 152 (3d ed. 1812) (defining "privilege" as a "peculiar advantage"); id., at 105 (defining "immunity" as "privilege, exemption"); Royal Standard English Dictionary 411 (1788) (defining "privilege" as "public right; peculiar advantage").

3

See also, e.g., Charter of Va. (1606), reprinted in 7 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 3783, 3788 (F. Thorpe ed.1909) (hereinafter Thorpe) ("DECLAR[ING]" that "all and every the Persons being our Subjects, . . . shall HAVE and enjoy all Liberties, Franchises, and Immunities. . . as if they had been abiding and born, within this our Realm of England" (emphasis in original)); Charter of New England (1620), in 3 id., at 1827, 1839 ("[A]ll and every the Persons, beinge our Subjects, . . . shall have and enjoy all Liberties, and ffranchizes, and Immunities of free Denizens and naturall subjects . . . as if they had been abidinge and born within this our Kingdome of England"); Charter of Mass. Bay (1629), in id. at 1846, 1856-1857 (guaranteeing that "all and every the Subjects of Us, . . . shall have and enjoy all liberties and Immunities of free and naturall Subjects . . . as yf they and everie of them were borne within the Realme of England"); Grant of the Province of Me. (1639), in id., at 1625, 1635 (guaranteeing "Liberties Francheses and Immunityes of or belonging to any the naturall borne subjects of this our Kingdome of England"); Charter of Carolina (1663), in 5 id., at 2743, 2747 (guaranteeing to all subjects "all liberties franchises and priviledges of this our kingdom of England"); Charter of R.I. and Providence Plantations (1663), in 6 id., at 3211, 3220 ("[A]ll and every the subjects of us . . . shall have and enjoye all libertyes and immunityes of ffree and naturall subjects within any the dominions of us, our heires, or successours,. . . as if they, and every of them, were borne within the realme of England"); Charter of Ga. (1732), in 2 id., at 765, 773 ("[A]ll and every the persons which shall happen to be born within the said province . . . shall have and enjoy all liberties, franchises and immunities of free denizens and natural born subjects, within any of our dominions, to all intents and purposes, as if abiding and born within this our kingdom of Great-Britain").

4

See also, e.g., A. Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America 174 (1968) (quoting 1774 Georgia resolution declaring that the colony's inhabitants were entitled to "`the same rights, privileges, and immunities with their fellow-subjects in Great Britain'" (emphasis in original)); The Virginia Resolves, The Resolutions as Printed in the Journal of the House of Burgesses, reprinted in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764-1766, at 46, 48 ("[T]he Colonists aforesaid are declared entitled to all Liberties, Privileges, and Immunities of Denizens and natural Subjects, to all Intents and Purposes, as if they had been abiding and born within the Realm of England" (emphasis in original)).

5

See also Va. Declaration of Rights (1776), reprinted in 1 Schwartz 234-236; Pa. Declaration of Rights (1776), in id., at 263-275; Del. Declaration of Rights (1776), in id., at 276-278; Md. Declaration of Rights (1776), in id., at 280-285; N.C. Declaration of Rights (1776), in id., 286-288.

6

Justice Washington's complete list was as follows:

"Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised." 6 Fed. Cas., at 551-552.

7

See also Treaty Between the United States of America and the Ottawa Indians of Blanchard's Fork and Roche De Boeuf, June 24, 1862, 12 Stat. 1237 ("The Ottawa Indians of the United Bands of Blanchard's Fork and of Roche de Boeuf, having become sufficiently advanced in civilization, and being desirous of becoming citizens of the United States . . . [after five years from the ratification of this treaty] shall be deemed and declared to be citizens of the United States, to all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens" (emphasis added)); Treaty Between the United States of America and Different Tribes of Sioux Indians, Art. VI, April 29, 1868, 15 Stat. 637 ("[A]ny Indian or Indians receiving a patent for land under the foregoing provisions, shall thereby and from thenceforth become and be a citizen of the United States, and be entitled to all the privileges and immunities of such citizens" (emphasis added)).

8

Subsequent treaties contained similar guarantees that the inhabitants of the newly acquired territories would enjoy the freedom to exercise certain constitutional rights. See Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Art. IX, Feb. 2, 1848, 9 Stat. 930, T.S. No. 207 (cession of Texas) (declaring that inhabitants of the Territory were entitled "to the enjoyment of all the rights of citizens of the United States, according to the principles of the constitution; and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction"); Treaty concerning the Cession of the Russian Possessions in North America by his Majesty the Emperor of all the Russians to the United States of America, Art. III, Mar. 30, 1867, 15 Stat. 542, T.S. No. 301 (June 20, 1867) (cession of Alaska) ("The inhabitants of the ceded territory, . . . if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion").

9

See, e.g., Speech of Mr. Joseph Hemphill (Pa.) on the Missouri Question in the House of the Representatives 16 (1820), as published in pamphlet form and reprinted in 22 Moore Pamphlets, p. 16 ("If the right to hold slaves is a federal right and attached merely to citizenship of the United States, [then slavery] could maintain itself against state authority, and on this principle the owner might take his slaves into any state he pleased, in defiance of the state laws, but this would be contrary to the constitution"); see also Lash, The Origins of the Privileges or Immunities Clause, Part I: "Privileges and Immunities" as an Antebellum Term of Art, 98 Geo. L.J. 1241, 1288-1290 (2010) (collecting other examples).

10

One Country, One Constitution, and One People: Speech of Hon. John A. Bingham, of Ohio, In the House of Representatives, February 28, 1866, In Support of the Proposed Amendment to Enforce the Bill of Rights (Cong.Globe). The pamphlet was published by the official reporter of congressional debates, and was distributed presumably pursuant to the congressional franking privilege. See B. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67, 68 Ohio St. L.J. 1509, 1558, n. 167 (2007) (hereinafter Wildenthal).

11

The full text of Bingham's first draft of § 1 provided as follows:

"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property." 39th Cong. Globe 1088.

12

In a separate front-page article on the same day, the paper expounded upon Hale's arguments in even further detail, while omitting Bingham's chief rebuttals. N.Y. Times, Feb. 28, 1866, p. 1. The unbalanced nature of The New York Times' coverage is unsurprising. As scholars have noted, "[m]ost papers" during the time of Reconstruction "had a frank partisan slant . . . and the Times was no exception." Wildenthal 1559. In 1866, the paper "was still defending" President Johnson's resistance to Republican reform measures, as exemplified by the fact that it "supported Johnson's veto of the Civil Rights Act of 1866." Ibid.

13

Other papers that covered Howard's speech include the following: Baltimore Gazette, May 24, 1866, p. 4; Boston Daily Journal, May 24, 1866, p. 4; Boston Daily Advertiser, May 24, 1866, p. 1; Daily National Intelligencer, May 24, 1866, p. 3. Springfield Daily Republican, May 24, 1866, p. 3; Charleston Daily Courier, May 28, 1866, p. 4; Charleston Daily Courier, May 29, 1866, p. 1; Chicago Tribune, May 29, 1866, p. 2; Philadelphia Inquirer, May 24, 1866, p. 8.

14

See J. Pomeroy, An Introduction to the Constitutional Law of the United States 155-156 (E. Bennett ed. 1886) (describing § 1, which the country was then still considering, as a "needed" "remedy" for Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833), which held that the Bill of Rights was not enforceable against the States); T. Farrar, Manual of the Constitution of the United States of America 58-59, 145-146, 395-397 (1867) (reprint 1993); id., at 546 (3d ed. 1872) (describing the Fourteenth Amendment as having "swept away" the "decisions of many courts" that "the popular rights guaranteed by the Constitution are secured only against [the federal] government").

15

The municipal respondents and Justice BREYER's dissent raise a most unusual argument that § 1 prohibits discriminatory laws affecting only the right to keep and bear arms, but offers substantive protection to other rights enumerated in the Constitution, such as the freedom of speech. See post, at 3032-3033. Others, however, have made the more comprehensive—and internally consistent— argument that § 1 bars discrimination alone and does not afford protection to any substantive rights. See, e.g., R. Berger, Government By Judiciary: The Transformation of the Fourteenth Amendment (1997). I address the coverage of the Privileges or Immunities Clause only as it applies to the Second Amendment right presented here, but I do so with the understanding that my conclusion may have implications for the broader argument.

16

See, e.g., Raleigh & Gaston R. Co. v. Davis, 19 N.C. 451, 458-462 (1837) (right to just compensation for government taking of property); Rohan v. Sawin, 59 Mass. 281, 285 (1850) (right to be secure from unreasonable government searches and seizures); State v. Buzzard, 4 Ark. 18, 28 (1842) (right to keep and bear arms); State v. Jumel, 13 La. Ann. 399, 400 (1858) (same); Cockrum v. State, 24 Tex. 394, 401-404 (1859) (same).

17

See, e.g., People v. Goodwin, 18 Johns. Cas. 187, 201 (N.Y.Sup.Ct.1820); Rhinehart v. Schuyler, 7 Ill. 473, 522 (1845).

18

See, e.g., Black Code, ch. 33, § 19, 1806 La. Acts pp. 160, 162 (prohibiting slaves from using firearms unless they were authorized by their master to hunt within the boundaries of his plantation); Act of Dec. 18, 1819, 1819 S.C. Acts pp. 29, 31 (same); An Act Concerning Slaves, § 6, 1840 Tex. Laws pp. 42-43 (making it unlawful for "any slave to own firearms of any description").

19

I conclude that the right to keep and bear arms applies to the States through the Privileges or Immunities Clause, which recognizes the rights of United States "citizens." The plurality concludes that the right applies to the States through the Due Process Clause, which covers all "person[s]." Because this case does not involve a claim brought by a noncitizen, I express no view on the difference, if any, between my conclusion and the plurality's with respect to the extent to which the States may regulate firearm possession by noncitizens.

20

I note, however, that I see no reason to assume that the constitutionally enumerated rights protected by the Privileges or Immunities Clause should consist of all the rights recognized in the Bill of Rights and no others. Constitutional provisions outside the Bill of Rights protect individual rights, see, e.g., Art. I, § 9, cl. 2 (granting the "Privilege of the Writ of Habeas Corpus"), and there is no obvious evidence that the Framers of the Privileges or Immunities Clause meant to exclude them. In addition, certain Bill of Rights provisions prevent federal interference in state affairs and are not readily construed as protecting rights that belong to individuals. The Ninth and Tenth Amendments are obvious examples, as is the First Amendment's Establishment Clause, which "does not purport to protect individual rights." Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 50, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (THOMAS, J., concurring in judgment); see Amar 179-180.

21

To the extent Justice STEVENS is concerned that reliance on the Privileges or Immunities Clause may invite judges to "write their personal views of appropriate public policy into the Constitution," post, at 3089-3090 (internal quotation marks omitted), his celebration of the alternative—the "flexibility," "transcend[ence]," and "dynamism" of substantive due process—speaks for itself, post, at 3096, 3099.

22

Tillman went on to a long career as South Carolina's Governor and, later, United States Senator. Tillman's contributions to campaign finance law have been discussed in our recent cases on that subject. See Citizens United v. Federal Election Comm'n, 558 U.S. ___, ___, ___, ___, ___, ___, 130 S.Ct. 876, ___ L.Ed.2d ___ (2010) (STEVENS, J., dissenting) (discussing at length the Tillman Act of 1907, 34 Stat. 864). His contributions to the culture of terrorism that grew in the wake of Cruikshank had an even more dramatic and tragic effect.

23

In an effort to enforce the Fourteenth Amendment and halt this violence, Congress enacted a series of civil rights statutes, including the Force Acts, see Act of May 31, 1870, 16 Stat. 140; Act of Feb. 28, 1871, 16 Stat. 433, and the Ku Klux Klan Act, see Act of Apr. 20, 1871, 17 Stat. 13.

Justice STEVENS, dissenting.

In District of Columbia v. Heller, 554 U.S. ___, ___, 128 S.Ct. 2783, 2788, 171 L.Ed.2d 637 (2008), the Court answered the question whether a federal enclave's "prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution." The question we should be answering in this case is whether the Constitution "guarantees individuals a fundamental right," enforceable against the States, "to possess a functional, personal firearm, including a handgun, within the home." Complaint ¶ 34, App. 23. That is a different—and more difficult—inquiry than asking if the Fourteenth Amendment "incorporates" the Second Amendment. The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century.1

Before the District Court, petitioners focused their pleadings on the special considerations raised by domestic possession, which they identified as the core of their asserted right. In support of their claim that the city of Chicago's handgun ban violates the Constitution, they now rely primarily on the Privileges or Immunities Clause of the Fourteenth Amendment. See Brief for Petitioners 9-65. They rely *3089 secondarily on the Due Process Clause of that Amendment. See id., at 66-72. Neither submission requires the Court to express an opinion on whether the Fourteenth Amendment places any limit on the power of States to regulate possession, use, or carriage of firearms outside the home.

I agree with the plurality's refusal to accept petitioners' primary submission. Ante, at 3030-3031. Their briefs marshal an impressive amount of historical evidence for their argument that the Court interpreted the Privileges or Immunities Clause too narrowly in the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394 (1873). But the original meaning of the Clause is not as clear as they suggest2 — and not nearly as clear as it would need to be to dislodge 137 years of precedent. The burden is severe for those who seek radical change in such an established body of constitutional doctrine.3 Moreover, the suggestion that invigorating the Privileges or Immunities Clause will reduce judicial discretion, see Reply Brief for Petitioners 22, n. 8, 26; Tr. of Oral Arg. 64-65, strikes me as implausible, if not exactly backwards. "For the very reason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution."4

I further agree with the plurality that there are weighty arguments supporting petitioners' second submission, insofar as *3090 it concerns the possession of firearms for lawful self-defense in the home. But these arguments are less compelling than the plurality suggests; they are much less compelling when applied outside the home; and their validity does not depend on the Court's holding in Heller. For that holding sheds no light on the meaning of the Due Process Clause of the Fourteenth Amendment. Our decisions construing that Clause to render various procedural guarantees in the Bill of Rights enforceable against the States likewise tell us little about the meaning of the word "liberty" in the Clause or about the scope of its protection of nonprocedural rights.

This is a substantive due process case.

I

Section 1 of the Fourteenth Amendment decrees that no State shall "deprive any person of life, liberty, or property, without due process of law." The Court has filled thousands of pages expounding that spare text. As I read the vast corpus of substantive due process opinions, they confirm several important principles that ought to guide our resolution of this case. The principal opinion's lengthy summary of our "incorporation" doctrine, see ante, at 3028-3030, 3031-3036 (majority opinion), 3030-3031 (plurality opinion), and its implicit (and untenable) effort to wall off that doctrine from the rest of our substantive due process jurisprudence, invite a fresh survey of this old terrain.

Substantive Content

The first, and most basic, principle established by our cases is that the rights protected by the Due Process Clause are not merely procedural in nature. At first glance, this proposition might seem surprising, given that the Clause refers to "process." But substance and procedure are often deeply entwined. Upon closer inspection, the text can be read to "impos[e] nothing less than an obligation to give substantive content to the words `liberty' and `due process of law,'" Washington v. Glucksberg, 521 U.S. 702, 764, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Souter, J., concurring in judgment), lest superficially fair procedures be permitted to "destroy the enjoyment" of life, liberty, and property, Poe v. Ullman, 367 U.S. 497, 541, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting), and the Clause's prepositional modifier be permitted to swallow its primary command. Procedural guarantees are hollow unless linked to substantive interests; and no amount of process can legitimize some deprivations.

I have yet to see a persuasive argument that the Framers of the Fourteenth Amendment thought otherwise. To the contrary, the historical evidence suggests that, at least by the time of the Civil War if not much earlier, the phrase "due process of law" had acquired substantive content as a term of art within the legal community.5 This understanding is consonant *3091 with the venerable "notion that governmental authority has implied limits which preserve private autonomy,"6 a notion which predates the founding and which finds reinforcement in the Constitution's Ninth Amendment, see Griswold v. Connecticut, 381 U.S. 479, 486-493, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).7 The Due Process Clause cannot claim to be the source of our basic freedoms—no legal document ever could, see Meachum v. Fano, 427 U.S. 215, 230, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (STEVENS, J., dissenting)— but it stands as one of their foundational guarantors in our law.

If text and history are inconclusive on this point, our precedent leaves no doubt: It has been "settled" for well over a century that the Due Process Clause "applies to matters of substantive law as well as to matters of procedure." Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). Time and again, we have recognized that in the Fourteenth Amendment as well as the Fifth, the "Due Process Clause guarantees more than fair process, and the `liberty' it protects includes more than the absence of physical restraint." Glucksberg, 521 U.S., at 719, 117 S.Ct. 2258. "The Clause also includes a substantive component that `provides heightened protection against government interference with certain fundamental rights and liberty interests.'" Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (opinion of O'Connor, J., joined by Rehnquist, C.J., and GINSBURG and BREYER, JJ.) (quoting Glucksberg, 521 U.S., at 720, 117 S.Ct. 2258). Some of our most enduring precedents, accepted today by virtually everyone, were substantive due process decisions. See, e.g., Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (recognizing due-process as well as equal-protection-based right to marry person of another race); Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (outlawing racial segregation in District of Columbia public schools); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (vindicating right of parents to direct upbringing and education of their children); Meyer v. Nebraska, 262 U.S. 390, 399-403, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (striking down prohibition on teaching of foreign languages).

Liberty

The second principle woven through our cases is that substantive due process is fundamentally a matter of personal liberty. For it is the liberty clause of the Fourteenth *3092 Amendment that grounds our most important holdings in this field. It is the liberty clause that enacts the Constitution's "promise" that a measure of dignity and self-rule will be afforded to all persons. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). It is the liberty clause that reflects and renews "the origins of the American heritage of freedom [and] the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable." Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 720 (C.A.7 1975) (Stevens, J.). Our substantive due process cases have episodically invoked values such as privacy and equality as well, values that in certain contexts may intersect with or complement a subject's liberty interests in profound ways. But as I have observed on numerous occasions, "most of the significant [20th-century] cases raising Bill of Rights issues have, in the final analysis, actually interpreted the word `liberty' in the Fourteenth Amendment."8

It follows that the term "incorporation," like the term "unenumerated rights," is something of a misnomer. Whether an asserted substantive due process interest is explicitly named in one of the first eight Amendments to the Constitution or is not mentioned, the underlying inquiry is the same: We must ask whether the interest is "comprised within the term liberty." Whitney, 274 U.S., at 373, 47 S.Ct. 641 (Brandeis, J., concurring). As the second Justice Harlan has shown, ever since the Court began considering the applicability of the Bill of Rights to the States, "the Court's usual approach has been to ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments." Malloy v. Hogan, 378 U.S. 1, 24, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (dissenting opinion); see also Frankfurter, Memorandum on "Incorporation" of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L.Rev. 746, 747-750 (1965). In the pathmarking case of Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), for example, both the majority and dissent evaluated petitioner's free speech claim not under the First Amendment but as an aspect of "the fundamental personal rights and `liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."9

*3093 In his own classic opinion in Griswold, 381 U.S., at 500, 85 S.Ct. 1678 (concurring in judgment), Justice Harlan memorably distilled these precedents' lesson: "While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands ... on its own bottom."10 Inclusion in the Bill of Rights is neither necessary nor sufficient for an interest to be judicially enforceable under the Fourteenth Amendment. This Court's "`selective incorporation'" doctrine, ante, at 3034, is not simply "related" to substantive due process, ante, at 3036; it is a subset thereof.

Federal/State Divergence

The third precept to emerge from our case law flows from the second: The rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights. As drafted, the Bill of Rights directly constrained only the Federal Government. See Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833). Although the enactment of the Fourteenth Amendment profoundly altered our legal order, it "did not unstitch the basic federalist pattern woven into our constitutional fabric." Williams v. Florida, 399 U.S. 78, 133, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Harlan, J., concurring in result). Nor, for that matter, did it expressly alter the Bill of Rights. The Constitution still envisions a system of divided sovereignty, still "establishes a federal republic where local differences are to be cherished as elements of liberty" in the vast run of cases, National Rifle Assn. of Am. Inc. v. Chicago, 567 F.3d 856, 860 (C.A.7 2009) (Easterbrook, C. J.), still allocates a general "police power... to the States and the States alone," United States v. Comstock, 560 U.S. ___, ___, 130 S.Ct. 1949, 1967, 176 L.Ed.2d 878 (2010) (KENNEDY, J., concurring in judgment). Elementary considerations of constitutional text and structure suggest there may be legitimate reasons to hold state governments to different standards than the Federal Government in certain areas.11

It is true, as the Court emphasizes, ante, at 3034-3036, that we have made numerous provisions of the Bill of Rights fully applicable to the States. It is settled, for *3094 instance, that the Governor of Alabama has no more power than the President of the United States to authorize unreasonable searches and seizures. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). But we have never accepted a "total incorporation" theory of the Fourteenth Amendment, whereby the Amendment is deemed to subsume the provisions of the Bill of Rights en masse. See ante, at 3034. And we have declined to apply several provisions to the States in any measure. See, e.g., Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916) (Seventh Amendment); Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (Grand Jury Clause). We have, moreover, resisted a uniform approach to the Sixth Amendment's criminal jury guarantee, demanding 12-member panels and unanimous verdicts in federal trials, yet not in state trials. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality opinion); Williams, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. In recent years, the Court has repeatedly declined to grant certiorari to review that disparity.12 While those denials have no precedential significance, they confirm the proposition that the "incorporation" of a provision of the Bill of Rights into the Fourteenth Amendment does not, in itself, mean the provision must have precisely the same meaning in both contexts.

It is true, as well, that during the 1960's the Court decided a number of cases involving procedural rights in which it treated the Due Process Clause as if it transplanted language from the Bill of Rights into the Fourteenth Amendment. See, e.g., Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (Double Jeopardy Clause); Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (Confrontation Clause). "Jot-for-jot" incorporation was the norm in this expansionary era. Yet at least one subsequent opinion suggests that these precedents require perfect state/federal congruence only on matters "`at the core'" of the relevant constitutional guarantee. Crist v. Bretz, 437 U.S. 28, 37, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); see also id., at 52-53, 98 S.Ct. 2156 (Powell, J., dissenting). In my judgment, this line of cases is best understood as having concluded that, to ensure a criminal trial satisfies essential standards of fairness, some procedures should be the same in state and federal courts: The need for certainty and uniformity is more pressing, and the margin for error slimmer, when criminal justice is at issue. That principle has little relevance to the question whether a non procedural rule set forth in the Bill of Rights qualifies as an aspect of the liberty protected by the Fourteenth Amendment.

Notwithstanding some overheated dicta in Malloy, 378 U.S., at 10-11, 84 S.Ct. 1489, it is therefore an overstatement to say that the Court has "abandoned," ante, at 3034, 3035 (majority opinion), 3047 (plurality opinion), a "two-track approach to incorporation," ante, at 3046 (plurality opinion). The Court moved away from that approach in the area of criminal procedure. But the Second Amendment differs in fundamental respects from its neighboring provisions in the Bill of Rights, as I shall explain in Part V, infra; *3095 and if some 1960's opinions purported to establish a general method of incorporation, that hardly binds us in this case. The Court has not hesitated to cut back on perceived Warren Court excesses in more areas than I can count.

I do not mean to deny that there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to the State and Federal Governments. Jot-for-jot incorporation of a provision may entail greater protection of the right at issue and therefore greater freedom for those who hold it; jot-for-jot incorporation may also yield greater clarity about the contours of the legal rule. See Johnson v. Louisiana, 406 U.S. 356, 364-368, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (Douglas, J., dissenting); Pointer, 380 U.S., at 413-414, 85 S.Ct. 1065 (Goldberg, J., concurring). In a federalist system such as ours, however, this approach can carry substantial costs. When a federal court insists that state and local authorities follow its dictates on a matter not critical to personal liberty or procedural justice, the latter may be prevented from engaging in the kind of beneficent "experimentation in things social and economic" that ultimately redounds to the benefit of all Americans. New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting). The costs of federal courts' imposing a uniform national standard may be especially high when the relevant regulatory interests vary significantly across localities, and when the ruling implicates the States' core police powers.

Furthermore, there is a real risk that, by demanding the provisions of the Bill of Rights apply identically to the States, federal courts will cause those provisions to "be watered down in the needless pursuit of uniformity." Duncan v. Louisiana, 391 U.S. 145, 182, n. 21, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (Harlan, J., dissenting). When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed standard. This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedure and into the relatively vast domain of substantive rights. So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States. Indeed, it is far from clear that proponents of an individual right to keep and bear arms ought to celebrate today's decision.13

*3096 II

So far, I have explained that substantive due process analysis generally requires us to consider the term "liberty" in the Fourteenth Amendment, and that this inquiry may be informed by but does not depend upon the content of the Bill of Rights. How should a court go about the analysis, then? Our precedents have established, not an exact methodology, but rather a framework for decisionmaking. In this respect, too, the Court's narrative fails to capture the continuity and flexibility in our doctrine.

The basic inquiry was described by Justice Cardozo more than 70 years ago. When confronted with a substantive due process claim, we must ask whether the allegedly unlawful practice violates values "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937).14 If the practice in question lacks any "oppressive and arbitrary" character, if judicial enforcement of the asserted right would not materially contribute to "a fair and enlightened system of justice," then the claim is unsuitable for substantive due process protection. Id., at 327, 325, 58 S.Ct. 149. Implicit in Justice Cardozo's test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. Whether conceptualized as a "rational continuum" of legal precepts, Poe, 367 U.S., at 543, 81 S.Ct. 1752 (Harlan, J., dissenting), or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular.

Justice Cardozo's test undeniably requires judges to apply their own reasoned judgment, but that does not mean it involves an exercise in abstract philosophy. In addition to other constraints I will soon discuss, see Part III, infra, historical and empirical data of various kinds ground the analysis. Textual commitments laid down elsewhere in the Constitution, judicial precedents, English common law, legislative and social facts, scientific and professional developments, practices of other civilized societies,15 and, above all else, the "`traditions and conscience of our people,'" Palko, 302 U.S., at 325, 58 S.Ct. 149 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934)), are critical variables. They can provide evidence about which rights really are vital to ordered liberty, as well as a spur to judicial action.

The Court errs both in its interpretation of Palko and in its suggestion that later cases rendered Palko's methodology defunct. Echoing Duncan, the Court advises that Justice Cardozo's test will not be satisfied "`if a civilized system could be imagined that would not accord the particular *3097 protection.'" Ante, at 3032 (quoting 391 U.S., at 149, n. 14, 88 S.Ct. 1444). Palko does contain some language that could be read to set an inordinate bar to substantive due process recognition, reserving it for practices without which "neither liberty nor justice would exist." 302 U.S., at 326, 58 S.Ct. 149. But in view of Justice Cardozo's broader analysis, as well as the numerous cases that have upheld liberty claims under the Palko standard, such readings are plainly overreadings. We have never applied Palko in such a draconian manner.

Nor, as the Court intimates, see ante, at 3034, did Duncan mark an irreparable break from Palko, swapping out liberty for history. Duncan limited its discussion to "particular procedural safeguard[s]" in the Bill of Rights relating to "criminal processes," 391 U.S., at 149, n. 14, 88 S.Ct. 1444; it did not purport to set a standard for other types of liberty interests. Even with regard to procedural safeguards, Duncan did not jettison the Palko test so much as refine it: The judge is still tasked with evaluating whether a practice "is fundamental... to ordered liberty," within the context of the "Anglo-American" system. Duncan, 391 U.S., at 149-150, n. 14, 88 S.Ct. 1444. Several of our most important recent decisions confirm the proposition that substantive due process analysis— from which, once again, "incorporation" analysis derives—must not be wholly backward looking. See, e.g., Lawrence v. Texas, 539 U.S. 558, 572, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) ("[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry" (internal quotation marks omitted)); Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (garnering only two votes for history-driven methodology that "consult[s] the most specific tradition available"); see also post, at 3122-3123 (BREYER, J., dissenting) (explaining that post-Duncan "incorporation" cases continued to rely on more than history).16

The Court's flight from Palko leaves its analysis, careful and scholarly though it is, much too narrow to provide a satisfying answer to this case. The Court hinges its entire decision on one mode of intellectual history, culling selected pronouncements and enactments from the 18th and 19th centuries to ascertain what Americans thought about firearms. Relying on Duncan and Glucksberg, the plurality suggests that only interests that have proved "fundamental from an American perspective," ante, at 3046, 3050, or "`deeply rooted in this Nation's history and tradition,'" ante, at 3036 (quoting Glucksberg, 521 U.S., at 721, 117 S.Ct. 2258), to the Court's satisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the Court's opinion could be read to imply that the historical pedigree of a right is the exclusive or dispositive determinant of its status under the Due Process Clause, the opinion is seriously mistaken.

A rigid historical test is inappropriate in this case, most basically, because our substantive due process doctrine has never evaluated substantive rights in purely, or even predominantly, historical terms. When the Court applied many of the procedural guarantees in the Bill of Rights to the States in the 1960's, it often asked whether the guarantee in question was "fundamental in the context of the criminal *3098 processes maintained by the American States."17 Duncan, 391 U.S., at 150, n. 14, 88 S.Ct. 1444. That inquiry could extend back through time, but it was focused not so much on historical conceptions of the guarantee as on its functional significance within the States' regimes. This contextualized approach made sense, as the choice to employ any given trial-type procedure means little in the abstract. It is only by inquiring into how that procedure intermeshes with other procedures and practices in a criminal justice system that its relationship to "liberty" and "due process" can be determined.

Yet when the Court has used the Due Process Clause to recognize rights distinct from the trial context—rights relating to the primary conduct of free individuals— Justice Cardozo's test has been our guide. The right to free speech, for instance, has been safeguarded from state infringement not because the States have always honored it, but because it is "essential to free government" and "to the maintenance of democratic institutions"—that is, because the right to free speech is implicit in the concept of ordered liberty. Thornhill v. Alabama, 310 U.S. 88, 95, 96, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); see also, e.g., Loving, 388 U.S., at 12, 87 S.Ct. 1817 (discussing right to marry person of another race); Mapp v. Ohio, 367 U.S. 643, 650, 655-657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (discussing right to be free from arbitrary intrusion by police); Schneider v. State (Town of Irvington), 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939) (discussing right to distribute printed matter).18 While the verbal formula has varied, the Court has largely been consistent in its liberty-based approach to substantive interests outside of the adjudicatory system. As the question before us indisputably concerns such an interest, the answer cannot be found in a granular inspection of state constitutions or congressional debates.

More fundamentally, a rigid historical methodology is unfaithful to the Constitution's command. For if it were really the case that the Fourteenth Amendment's guarantee of liberty embraces only those rights "so rooted in our history, tradition, and practice as to require special protection," Glucksberg, 521 U.S., at 721, n. 17, 117 S.Ct. 2258, then the guarantee would serve little function, save to ratify those rights that state actors have already been according the most extensive protection.19 Cf. Duncan, 391 U.S., at 183, 88 S.Ct. 1444 (Harlan, J., dissenting) (critiquing "circular[ity]" of historicized test for incorporation). That approach is unfaithful to the expansive principle Americans laid down when they ratified the Fourteenth Amendment and to the level of generality they chose when they crafted its language; it promises an objectivity it cannot deliver and masks the value judgments that pervade *3099 any analysis of what customs, defined in what manner, are sufficiently "`rooted'"; it countenances the most revolting injustices in the name of continuity,20 for we must never forget that not only slavery but also the subjugation of women and other rank forms of discrimination are part of our history; and it effaces this Court's distinctive role in saying what the law is, leaving the development and safekeeping of liberty to majoritarian political processes. It is judicial abdication in the guise of judicial modesty.

No, the liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a "dynamic concept." Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L.Rev. 13, 38 (1972). Its dynamism provides a central means through which the Framers enabled the Constitution to "endure for ages to come," McCulloch v. Maryland, 4 Wheat. 316, 415, 4 L.Ed. 579 (1819), a central example of how they "wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live," Rehnquist, The Notion of a Living Constitution, 54 Tex. L.Rev. 693, 694 (1976). "The task of giving concrete meaning to the term `liberty,'" I have elsewhere explained at some length, "was a part of the work assigned to future generations." Stevens, The Third Branch of Liberty, 41 U. Miami L.Rev. 277, 291 (1986).21 The judge who would outsource the interpretation of "liberty" to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.22

III

At this point a difficult question arises. In considering such a majestic term as "liberty" and applying it to present circumstances, how are we to do justice to its urgent call and its open texture—and to the grant of interpretive discretion the *3100 latter embodies—without injecting excessive subjectivity or unduly restricting the States' "broad latitude in experimenting with possible solutions to problems of vital local concern," Whalen v. Roe, 429 U.S. 589, 597, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)? One part of the answer, already discussed, is that we must ground the analysis in historical experience and reasoned judgment, and never on "merely personal and private notions." Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Our precedents place a number of additional constraints on the decisional process. Although "guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), significant guideposts do exist.23

The most basic is that we have eschewed attempts to provide any all-purpose, top-down, totalizing theory of "liberty."24 That project is bound to end in failure or worse. The Framers did not express a clear understanding of the term to guide us, and the now-repudiated Lochner line of cases attests to the dangers of judicial overconfidence in using substantive due process to advance a broad theory of the right or the good. See, e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). In its most durable precedents, the Court "has not attempted to define with exactness the liberty ... guaranteed" by the Fourteenth Amendment. Meyer, 262 U.S., at 399, 43 S.Ct. 625; see also, e.g., Bolling, 347 U.S., at 499, 74 S.Ct. 693. By its very nature, the meaning of liberty cannot be "reduced to any formula; its content cannot be determined by reference to any code." Poe, 367 U.S., at 542, 81 S.Ct. 1752 (Harlan, J., dissenting).

Yet while "the `liberty' specially protected by the Fourteenth Amendment" is "perhaps not capable of being fully clarified," Glucksberg, 521 U.S., at 722, 117 S.Ct. 2258, it is capable of being refined and delimited. We have insisted that only certain types of especially significant personal interests may qualify for especially heightened protection. Ever since "the deviant economic due process cases [were] repudiated," id., at 761, 117 S.Ct. 2258 (Souter, J., concurring in judgment), our doctrine has steered away from "laws that touch economic problems, business affairs, *3101 or social conditions," Griswold, 381 U.S., at 482, 85 S.Ct. 1678, and has instead centered on "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education," Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). These categories are not exclusive. Government action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, perpetrates gross injustice, or simply lacks a rational basis will always be vulnerable to judicial invalidation. Nor does the fact that an asserted right falls within one of these categories end the inquiry. More fundamental rights may receive more robust judicial protection, but the strength of the individual's liberty interests and the State's regulatory interests must always be assessed and compared. No right is absolute.

Rather than seek a categorical understanding of the liberty clause, our precedents have thus elucidated a conceptual core. The clause safeguards, most basically, "the ability independently to define one's identity," Roberts v. United States Jaycees, 468 U.S. 609, 619, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), "the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny," Fitzgerald, 523 F.2d, at 719, and the right to be respected as a human being. Self-determination, bodily integrity, freedom of conscience, intimate relationships, political equality, dignity and respect—these are the central values we have found implicit in the concept of ordered liberty.

Another key constraint on substantive due process analysis is respect for the democratic process. If a particular liberty interest is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate. When the Court declined to establish a general right to physician-assisted suicide, for example, it did so in part because "the States [were] currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues," rendering judicial intervention both less necessary and potentially more disruptive. Glucksberg, 521 U.S., at 719, 735, 117 S.Ct. 2258. Conversely, we have long appreciated that more "searching" judicial review may be justified when the rights of "discrete and insular minorities"—groups that may face systematic barriers in the political system—are at stake. United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Courts have a "comparative ... advantage" over the elected branches on a limited, but significant, range of legal matters. Post, at 3124.

Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, "outside the arena of public debate and legislative action." Glucksberg, 521 U.S., at 720, 117 S.Ct. 2258. Sometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.

This sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution. Because the relevant constitutional language is so "spacious," Duncan, 391 U.S., at 148, 88 S.Ct. 1444, I have emphasized that "[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we *3102 are asked to break new ground in this field." Collins, 503 U.S., at 125, 112 S.Ct. 1061. Many of my colleagues and predecessors have stressed the same point, some with great eloquence. See, e.g., Casey, 505 U.S., at 849, 112 S.Ct. 2791; Moore v. East Cleveland, 431 U.S. 494, 502-503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion); Poe, 367 U.S., at 542-545, 81 S.Ct. 1752 (Harlan, J., dissenting); Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (Frankfurter, J., concurring). Historical study may discipline as well as enrich the analysis. But the inescapable reality is that no serious theory of Section 1 of the Fourteenth Amendment yields clear answers in every case, and "[n]o formula could serve as a substitute, in this area, for judgment and restraint." Poe, 367 U.S., at 542, 81 S.Ct. 1752 (Harlan, J., dissenting).

Several rules of the judicial process help enforce such restraint. In the substantive due process field as in others, the Court has applied both the doctrine of stare decisis —adhering to precedents, respecting reliance interests, prizing stability and order in the law—and the common-law method—taking cases and controversies as they present themselves, proceeding slowly and incrementally, building on what came before. This restrained methodology was evident even in the heyday of "incorporation" during the 1960's. Although it would have been much easier for the Court simply to declare certain Amendments in the Bill of Rights applicable to the States in toto, the Court took care to parse each Amendment into its component guarantees, evaluating them one by one. This piecemeal approach allowed the Court to scrutinize more closely the right at issue in any given dispute, reducing both the risk and the cost of error.

Relatedly, rather than evaluate liberty claims on an abstract plane, the Court has "required in substantive-due-process cases a `careful description' of the asserted fundamental liberty interest." Glucksberg, 521 U.S., at 721, 117 S.Ct. 2258 (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Collins, 503 U.S., at 125, 112 S.Ct. 1061; Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 277-278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990)). And just as we have required such careful description from the litigants, we have required of ourselves that we "focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake." Collins, 503 U.S., at 125, 112 S.Ct. 1061; see also Stevens, Judicial Restraint, 22 San Diego L.Rev. 437, 446-448 (1985). This does not mean that we must define the asserted right at the most specific level, thereby sapping it of a universal valence and a moral force it might otherwise have.25 It means, simply, that we must pay close attention to the precise liberty interest the litigants have asked us to vindicate.

*3103 Our holdings should be similarly tailored. Even if the most expansive formulation of a claim does not qualify for substantive due process recognition, particular components of the claim might. Just because there may not be a categorical right to physician-assisted suicide, for example, does not "`foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.'" Glucksberg, 521 U.S., at 735, n. 24, 117 S.Ct. 2258 (quoting id., at 750, 117 S.Ct. 2258 (STEVENS, J., concurring in judgments)); see also Vacco v. Quill, 521 U.S. 793, 809, n. 13, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997) (leaving open "`the possibility that some applications of the [New York prohibition on assisted suicide] may impose an intolerable intrusion on the patient's freedom'"). Even if a State's interest in regulating a certain matter must be permitted, in the general course, to trump the individual's countervailing liberty interest, there may still be situations in which the latter "is entitled to constitutional protection." Glucksberg, 521 U.S., at 742, 117 S.Ct. 2302 (STEVENS, J., concurring in judgments).

As this discussion reflects, to acknowledge that the task of construing the liberty clause requires judgment is not to say that it is a license for unbridled judicial lawmaking. To the contrary, only an honest reckoning with our discretion allows for honest argumentation and meaningful accountability.

IV

The question in this case, then, is not whether the Second Amendment right to keep and bear arms (whatever that right's precise contours) applies to the States because the Amendment has been incorporated into the Fourteenth Amendment. It has not been. The question, rather, is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom. And to answer that question, we need to determine, first, the nature of the right that has been asserted and, second, whether that right is an aspect of Fourteenth Amendment "liberty." Even accepting the Court's holding in Heller, it remains entirely possible that the right to keep and bear arms identified in that opinion is not judicially enforceable against the States, or that only part of the right is so enforceable.26 It is likewise possible for the Court to find in this case that some part of the Heller right applies to the States, and then to find in later cases that other parts of the right also apply, or apply on different terms.

As noted at the outset, the liberty interest petitioners have asserted is the "right to possess a functional, personal firearm, including a handgun, within the home." Complaint ¶ 34, App. 23. The city of Chicago allows residents to keep functional firearms, so long as they are registered, but it generally prohibits the possession of handguns, sawed-off shotguns, machine guns, and short-barreled rifles. See Chicago, Ill., Municipal Code § 8-20-050 *3104 (2009).27 Petitioners' complaint centered on their desire to keep a handgun at their domicile—it references the "home" in nearly every paragraph, see Complaint ¶¶ 3-4, 11-30, 32, 34, 37, 42, 44, 46, App. 17, 19-26—as did their supporting declarations, see, e.g., App. 34, 36, 40, 43, 49-52, 54-56. Petitioners now frame the question that confronts us as "[w]hether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses." Brief for Petitioners, p. i. But it is our duty "to focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake," Collins, 503 U.S., at 125, 112 S.Ct. 1061, and the gravamen of this complaint is plainly an appeal to keep a handgun or other firearm of one's choosing in the home.

Petitioners' framing of their complaint tracks the Court's ruling in Heller. The majority opinion contained some dicta suggesting the possibility of a more expansive arms-bearing right, one that would travel with the individual to an extent into public places, as "in case of confrontation." 554 U.S., at ___, 128 S.Ct., at 2797-2798. But the Heller plaintiff sought only dispensation to keep an operable firearm in his home for lawful self-defense, see id., at ___, 128 S.Ct., at 2788, and n. 2), and the Court's opinion was bookended by reminders that its holding was limited to that one issue, id., at ___, ___, 128 S.Ct., at 2788, 2821-2822; accord, ante, at 3050 (plurality opinion). The distinction between the liberty right these petitioners have asserted and the Second Amendment right identified in Heller is therefore evanescent. Both are rooted to the home. Moreover, even if both rights have the logical potential to extend further, upon "future evaluation," Heller, 554 U.S., at ___, 128 S.Ct., at 2821, it is incumbent upon us, as federal judges contemplating a novel rule that would bind all 50 States, to proceed cautiously and to decide only what must be decided.

Understood as a plea to keep their preferred type of firearm in the home, petitioners' argument has real force.28 The decision to keep a loaded handgun in the house is often motivated by the desire to protect life, liberty, and property. It is comparable, in some ways, to decisions about the education and upbringing of one's children. For it is the kind of decision that may have profound consequences for every member of the family, and for the world beyond. In considering whether to keep a handgun, heads of households must ask themselves whether the desired safety benefits outweigh the risks of deliberate or accidental misuse that may result in death or serious injury, not only to residents of the home but to others as well. Millions of Americans have answered this question in the affirmative, not infrequently because they believe they have an inalienable right to do so—because they consider it an aspect of "the supreme human dignity of being master of one's fate rather than a ward of the State," *3105 Indiana v. Edwards, 554 U.S. 164, 186, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (SCALIA, J., dissenting). Many such decisions have been based, in part, on family traditions and deeply held beliefs that are an aspect of individual autonomy the government may not control.29

Bolstering petitioners' claim, our law has long recognized that the home provides a kind of special sanctuary in modern life. See, e.g., U.S. Const., Amdts. 3, 4; Lawrence, 539 U.S., at 562, 567, 123 S.Ct. 2472; Payton v. New York, 445 U.S. 573, 585-590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Stanley v. Georgia, 394 U.S. 557, 565-568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Griswold, 381 U.S., at 484-485, 85 S.Ct. 1678. Consequently, we have long accorded special deference to the privacy of the home, whether a humble cottage or a magnificent manse. This veneration of the domestic harkens back to the common law. William Blackstone recognized a "right of habitation," 4 Commentaries *223, and opined that "every man's house is looked upon by the law to be his castle of defence and asylum," 3 id., at *223. Heller carried forward this legacy, observing that "the need for defense of self, family, and property is most acute" in one's abode, and celebrating "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 554 U.S., at ___, ___, 128 S.Ct., at 2817, 2821.

While the individual's interest in firearm possession is thus heightened in the home, the State's corresponding interest in regulation is somewhat weaker. The State generally has a lesser basis for regulating private as compared to public acts, and firearms kept inside the home generally pose a lesser threat to public welfare as compared to firearms taken outside. The historical case for regulation is likewise stronger outside the home, as many States have for many years imposed stricter, and less controversial, restrictions on the carriage of arms than on their domestic possession. See, e.g., id., at ___, 128 S.Ct., at 2816-2817 (noting that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues"); English v. State, 35 Tex. 473, 478-479 (1871) (observing that "almost, if not every one of the States of this Union have [a prohibition on the carrying of deadly weapons] upon their statute books," and lambasting claims of a right to carry such weapons as "little short of ridiculous"); Miller, Guns as Smut: Defending the Home-Bound Second Amendment, 109 Colum. L.Rev. 1278, 1321-1336 (2009).

It is significant, as well, that a rule limiting the federal constitutional right to keep and bear arms to the home would be less intrusive on state prerogatives and easier to administer. Having unleashed in Heller a tsunami of legal uncertainty, and thus litigation,30 and now on the cusp of imposing a national rule on the States in this area for the first time in United States history, the Court could at least moderate the confusion, upheaval, and burden on the States by adopting a rule that is clearly and tightly bounded in scope.

*3106 In their briefs to this Court, several amici have sought to bolster petitioners' claim still further by invoking a right to individual self-defense.31 As petitioners note, the Heller majority discussed this subject extensively and remarked that "[t]he inherent right of self-defense has been central to the Second Amendment right." 554 U.S., at ___, 128 S.Ct., at 2817. And it is true that if a State were to try to deprive its residents of any reasonable means of defending themselves from imminent physical threats, or to deny persons any ability to assert self-defense in response to criminal prosecution, that might pose a significant constitutional problem. The argument that there is a substantive due process right to be spared such untenable dilemmas is a serious one.32

But that is not the case before us. Petitioners have not asked that we establish a constitutional right to individual self-defense; neither their pleadings in the District Court nor their filings in this Court make any such request. Nor do petitioners contend that the city of Chicago— which, recall, allows its residents to keep most rifles and shotguns, and to keep them loaded—has unduly burdened any such right. What petitioners have asked is that *3107 we "incorporate" the Second Amendment and thereby establish a constitutional entitlement, enforceable against the States, to keep a handgun in the home.

Of course, owning a handgun may be useful for practicing self-defense. But the right to take a certain type of action is analytically distinct from the right to acquire and utilize specific instrumentalities in furtherance of that action. And while some might favor handguns, it is not clear that they are a superior weapon for lawful self-defense, and nothing in petitioners' argument turns on that being the case. The notion that a right of self-defense implies an auxiliary right to own a certain type of firearm presupposes not only controversial judgments about the strength and scope of the (posited) self-defense right, but also controversial assumptions about the likely effects of making that type of firearm more broadly available. It is a very long way from the proposition that the Fourteenth Amendment protects a basic individual right of self-defense to the conclusion that a city may not ban handguns.33

In short, while the utility of firearms, and handguns in particular, to the defense of hearth and home is certainly relevant to an assessment of petitioners' asserted right, there is no freestanding self-defense claim in this case. The question we must decide is whether the interest in keeping in the home a firearm of one's choosing—a handgun, for petitioners—is one that is "comprised within the term liberty" in the Fourteenth Amendment. Whitney, 274 U.S., at 373, 47 S.Ct. 641 (Brandeis, J., concurring).

V

While I agree with the Court that our substantive due process cases offer a principled basis for holding that petitioners have a constitutional right to possess a usable firearm in the home, I am ultimately persuaded that a better reading of our case law supports the city of Chicago. I would not foreclose the possibility that a particular plaintiff—say, an elderly widow who lives in a dangerous neighborhood and does not have the strength to operate a long gun—may have a cognizable liberty interest in possessing a handgun. But I cannot accept petitioners' broader submission. A number of factors, taken together, lead me to this conclusion.

First, firearms have a fundamentally ambivalent relationship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims. The threat that firearms will be misused is far from hypothetical, for gun crime has devastated many of our communities. Amici calculate that approximately one million Americans have been wounded or killed by gunfire in the last decade.34 Urban areas such as Chicago *3108 suffer disproportionately from this epidemic of violence. Handguns contribute disproportionately to it. Just as some homeowners may prefer handguns because of their small size, light weight, and ease of operation, some criminals will value them for the same reasons. See Heller, 554 U.S., at ___, 128 S.Ct., at 2864-2865 (BREYER, J., dissenting). In recent years, handguns were reportedly used in more than four-fifths of firearm murders and more than half of all murders nationwide.35

Hence, in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day— assuming the handgun's marginal contribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief—it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare.

The practical impact of various gun-control measures may be highly controversial, but this basic insight should not be. The idea that deadly weapons pose a distinctive threat to the social order—and that reasonable restrictions on their usage therefore impose an acceptable burden on one's personal liberty—is as old as the Republic. As THE CHIEF JUSTICE observed just the other day, it is a foundational premise of modern government that the State holds a monopoly on legitimate violence: "A basic step in organizing a civilized society is to take [the] sword out of private hands and turn it over to an organized government, acting on behalf of all the people." Robertson v. United States ex rel. Watson, ___ U.S. ___, ___, 130 S.Ct. 2184, ___ L.Ed.2d ___ (dissenting opinion). The same holds true for the handgun. The power a man has in the state of nature "of doing whatsoever he thought fit for the preservation of himself and the rest of mankind, he gives up," to a significant extent, "to be regulated by laws made by the society." J. Locke, Second Treatise of Civil Government § 129, p. 64 (J. Gough ed.1947).

Limiting the federal constitutional right to keep and bear arms to the home complicates the analysis but does not dislodge this conclusion. Even though the Court has long afforded special solicitude for the privacy of the home, we have never understood that principle to "infring[e] upon" the authority of the States to proscribe certain inherently dangerous items, for "[i]n such cases, compelling reasons may exist for overriding the right of the individual to possess those materials." Stanley, 394 U.S., at 568, n. 11, 89 S.Ct. 1243. *3109 And, of course, guns that start out in the home may not stay in the home. Even if the government has a weaker basis for restricting domestic possession of firearms as compared to public carriage—and even if a blanket, statewide prohibition on domestic possession might therefore be unconstitutional—the line between the two is a porous one. A state or local legislature may determine that a prophylactic ban on an especially portable weapon is necessary to police that line.

Second, the right to possess a firearm of one's choosing is different in kind from the liberty interests we have recognized under the Due Process Clause. Despite the plethora of substantive due process cases that have been decided in the post-Lochner century, I have found none that holds, states, or even suggests that the term "liberty" encompasses either the common-law right of self-defense or a right to keep and bear arms. I do not doubt for a moment that many Americans feel deeply passionate about firearms, and see them as critical to their way of life as well as to their security. Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imperfect substitutes, and neither petitioners nor their amici make such a contention. Petitioners' claim is not the kind of substantive interest, accordingly, on which a uniform, judicially enforced national standard is presumptively appropriate.36

Indeed, in some respects the substantive right at issue may be better viewed as a property right. Petitioners wish to acquire certain types of firearms, or to keep certain firearms they have previously acquired. Interests in the possession of chattels have traditionally been viewed as property interests subject to definition and regulation by the States. Cf. Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U.S. ___, ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (2010) (opinion of SCALIA, J.) ("Generally speaking, state law defines property interests"). Under that tradition, Chicago's ordinance is unexceptional.37

*3110 The liberty interest asserted by petitioners is also dissimilar from those we have recognized in its capacity to undermine the security of others. To be sure, some of the Bill of Rights' procedural guarantees may place "restrictions on law enforcement" that have "controversial public safety implications." Ante, at 3045 (plurality opinion); see also ante, at 3055 (opinion of SCALIA, J.). But those implications are generally quite attenuated. A defendant's invocation of his right to remain silent, to confront a witness, or to exclude certain evidence cannot directly cause any threat. The defendant's liberty interest is constrained by (and is itself a constraint on) the adjudicatory process. The link between handgun ownership and public safety is much tighter. The handgun is itself a tool for crime; the handgun's bullets are the violence.

Similarly, it is undeniable that some may take profound offense at a remark made by the soapbox speaker, the practices of another religion, or a gay couple's choice to have intimate relations. But that offense is moral, psychological, or theological in nature; the actions taken by the rights-bearers do not actually threaten the physical safety of any other person.38 Firearms may be used to kill another person. If a legislature's response to dangerous weapons ends up impinging upon the liberty of any individuals in pursuit of the greater good, it invariably does so on the basis of more than the majority's "`own moral code,'" Lawrence, 539 U.S., at 571, 123 S.Ct. 2472 (quoting Casey, 505 U.S., at 850, 112 S.Ct. 2791). While specific policies may of course be misguided, gun control is an area in which it "is quite wrong ... to assume that regulation and liberty occupy mutually exclusive zones—that as one expands, the other must contract." Stevens, 41 U. Miami L.Rev., at 280.

Third, the experience of other advanced democracies, including those that share our British heritage, undercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty. Many of these countries place restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation. See Municipal Respondents' Brief 21-23 (discussing laws of England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand). That the United States is an international outlier in the permissiveness of its approach to guns does not suggest that our laws are bad laws. It does suggest that this Court may not need to assume responsibility for making our laws still more permissive.

Admittedly, these other countries differ from ours in many relevant respects, including their problems with violent crime and the traditional role that firearms have played in their societies. But they are not so different from the United States that we ought to dismiss their experience entirely. Cf. ante, at 3044-3045 (plurality opinion); ante, at 3055-3056 (opinion of SCALIA, J.). The fact that our oldest allies have almost uniformly found it appropriate to regulate firearms extensively *3111 tends to weaken petitioners' submission that the right to possess a gun of one's choosing is fundamental to a life of liberty. While the "American perspective" must always be our focus, ante, at 3046, 3050 (plurality opinion), it is silly—indeed, arrogant—to think we have nothing to learn about liberty from the billions of people beyond our borders.

Fourth, the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners' claim. Generally, the inclusion of a liberty interest in the Bill of Rights points toward the conclusion that it is of fundamental significance and ought to be enforceable against the States. But the Second Amendment plays a peculiar role within the Bill, as announced by its peculiar opening clause.39 Even accepting the Heller Court's view that the Amendment protects an individual right to keep and bear arms disconnected from militia service, it remains undeniable that "the purpose for which the right was codified" was "to prevent elimination of the militia." Heller, 554 U.S., at ___, 128 S.Ct., at 2801; see also United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (Second Amendment was enacted "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces"). It was the States, not private persons, on whose immediate behalf the Second Amendment was adopted. Notwithstanding the Heller Court's efforts to write the Second Amendment's preamble out of the Constitution, the Amendment still serves the structural function of protecting the States from encroachment by an overreaching Federal Government.

The Second Amendment, in other words, "is a federalism provision," Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 45, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (THOMAS, J., concurring in judgment). It is directed at preserving the autonomy of the sovereign States, and its logic therefore "resists" incorporation by a federal court against the States. Ibid. No one suggests that the Tenth Amendment, which provides that powers not given to the Federal Government remain with "the States," applies to the States; such a reading would border on incoherent, given that the Tenth Amendment exists (in significant part) to safeguard the vitality of state governance. The Second Amendment is no different.40

The Court is surely correct that Americans' conceptions of the Second Amendment right evolved over time in a more individualistic direction; that Members of the Reconstruction Congress were urgently concerned about the safety of the newly freed slaves; and that some Members believed that, following ratification of the Fourteenth Amendment, the Second Amendment would apply to the States. But it is a giant leap from these data points to the conclusion that the Fourteenth *3112 Amendment "incorporated" the Second Amendment as a matter of original meaning or postenactment interpretation. Consider, for example, that the text of the Fourteenth Amendment says nothing about the Second Amendment or firearms; that there is substantial evidence to suggest that, when the Reconstruction Congress enacted measures to ensure newly freed slaves and Union sympathizers in the South enjoyed the right to possess firearms, it was motivated by antidiscrimination and equality concerns rather than arms-bearing concerns per se;41 that many contemporaneous courts and commentators did not understand the Fourteenth Amendment to have had an "incorporating" effect; and that the States heavily regulated the right to keep and bear arms both before and after the Amendment's passage. The Court's narrative largely elides these facts. The complications they raise show why even the most dogged historical inquiry into the "fundamentality" of the Second Amendment right (or any other) necessarily entails judicial judgment—and therefore judicial discretion—every step of the way.

I accept that the evolution in Americans' understanding of the Second Amendment may help shed light on the question whether a right to keep and bear arms is comprised within Fourteenth Amendment "liberty." But the reasons that motivated the Framers to protect the ability of militiamen to keep muskets available for military use when our Nation was in its infancy, or that motivated the Reconstruction Congress to extend full citizenship to the freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today. The many episodes of brutal violence against African-Americans that blight our Nation's history, see ante, at 3038-3042 (majority opinion); ante, at 3080-3082, 3086-3088 (THOMAS, J., concurring in part and concurring in judgment), do not suggest that every American must be allowed to own whatever type of firearm he or she desires—just that no group of Americans should be systematically and discriminatorily disarmed and left to the mercy of racial terrorists. And the fact that some Americans may have thought or hoped that the Fourteenth Amendment would nationalize the Second Amendment hardly suffices to justify the conclusion that it did.

Fifth, although it may be true that Americans' interest in firearm possession and state-law recognition of that interest are "deeply rooted" in some important senses, ante, at 3036 (internal quotation marks omitted), it is equally true that the States have a long and unbroken history of regulating firearms. The idea that States may place substantial restrictions on the right to keep and bear arms short of complete disarmament is, in fact, far more entrenched than the notion that the Federal Constitution protects any such right. Federalism is a far "older and more deeply rooted tradition than is a right to carry," or to own, "any particular kind of weapon." *3113 567 F.3d 856, 860 (C.A.7 2009) (Easterbrook, C. J.).

From the early days of the Republic, through the Reconstruction era, to the present day, States and municipalities have placed extensive licensing requirements on firearm acquisition, restricted the public carriage of weapons, and banned altogether the possession of especially dangerous weapons, including handguns. See Heller, 554 U.S., at ___, 128 S.Ct., at 2848-2850 (BREYER, J., dissenting) (reviewing colonial laws); Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L.Rev. 487, 502-516 (2004) (reviewing pre-Civil War laws); Brief for 34 Professional Historians and Legal Historians as Amici Curiae 4-22 (reviewing Reconstruction-era laws); Winkler, Scrutinizing the Second Amendment, 105 Mich. L.Rev. 683, 711-712, 716-726 (2007) (reviewing 20th-century laws); see generally post, at 3131-3136.42 After the 1860's just as before, the state courts almost uniformly upheld these measures: Apart from making clear that all regulations had to be constructed and applied in a nondiscriminatory manner, the Fourteenth Amendment hardly made a dent. And let us not forget that this Court did not recognize any non-militia-related interests under the Second Amendment until two Terms ago, in Heller. Petitioners do not dispute the city of Chicago's observation that "[n]o other substantive Bill of Rights protection has been regulated nearly as intrusively" as the right to keep and bear arms. Municipal Respondents' Brief 25.43

This history of intrusive regulation is not surprising given that the very text of the Second Amendment calls out for regulation,44 and the ability to respond to the social ills associated with dangerous weapons *3114 goes to the very core of the States' police powers. Our precedent is crystal clear on this latter point. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 270, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) ("[T]he structure and limitations of federalism ... allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons" (internal quotation marks omitted)); United States v. Morrison, 529 U.S. 598, 618, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) ("[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims"); Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) ("The promotion of safety of persons and property is unquestionably at the core of the State's police power"); Automobile Workers v. Wisconsin Employment Relations Bd., 351 U.S. 266, 274, 76 S.Ct. 794, 100 L.Ed. 1162 (1956) ("The dominant interest of the State in preventing violence and property damage cannot be questioned. It is a matter of genuine local concern"). Compared with today's ruling, most if not all of this Court's decisions requiring the States to comply with other provisions in the Bill of Rights did not exact nearly so heavy a toll in terms of state sovereignty.

Finally, even apart from the States' long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court's meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so.

Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use they claim. Cf. post, at 3128-3129. The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not. The city of Chicago has a high population density, which increases the potential for a gunman to inflict mass terror and casualties. Most rural areas do not.45 The city of Chicago offers little in the way of hunting opportunities. Residents of rural communities are, one presumes, much more likely to stock the dinner table with game they have personally felled.

Given that relevant background conditions diverge so much across jurisdictions, the Court ought to pay particular heed to state and local legislatures' "right to experiment." New State Ice, 285 U.S., at 311, 52 S.Ct. 371 (Brandeis, J., dissenting). So long as the regulatory measures they have chosen are not "arbitrary, capricious, or unreasonable," we should be allowing them to "try novel social and economic" policies. Ibid. It "is more in keeping ... with our status as a court in a federal system," under these circumstances, "to avoid imposing a single solution ... from the top down." Smith v. Robbins, 528 U.S. 259, 275, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

It is all the more unwise for this Court to limit experimentation in an area "where the best solution is far from clear." United States v. Lopez, 514 U.S. 549, 581, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (KENNEDY, J., concurring). Few issues of public policy are subject to such intensive *3115 and rapidly developing empirical controversy as gun control. See Heller, 554 U.S., at ___, 128 S.Ct., at 2857-2860 (BREYER, J., dissenting). Chicago's handgun ban, in itself, has divided researchers. Compare Brief for Professors of Criminal Justice as Amici Curiae (arguing that ordinance has been effective at reducing gun violence), with Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 17-26 (arguing that ordinance has been a failure).46 Of course, on some matters the Constitution requires that we ignore such pragmatic considerations. But the Constitution's text, history, and structure are not so clear on the matter before us—as evidenced by the groundbreaking nature of today's fractured decision—and this Court lacks both the technical capacity and the localized expertise to assess "the wisdom, need, and propriety" of most guncontrol measures. Griswold, 381 U.S., at 482, 85 S.Ct. 1678.47

Nor will the Court's intervention bring any clarity to this enormously complex area of law. Quite to the contrary, today's decision invites an avalanche of litigation that could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right—the precise contours of which are far from pellucid—under a standard of review we have not even established. See post, at 3126-3128. The plurality's "assuranc[e]" that "incorporation does not imperil every law regulating firearms," ante, at 3047, provides only modest comfort. For it is also an admission of just how many different types of regulations are potentially implicated by today's ruling, and of just how ad hoc the Court's initial attempt to draw distinctions among them was in Heller. The practical significance of the proposition that "the Second Amendment right is fully applicable to the States," ante, at 3026 (majority opinion), remains to be worked out by this Court over many, many years.

Furthermore, and critically, the Court's imposition of a national standard is still more unwise because the elected branches have shown themselves to be perfectly capable of safeguarding the interest in keeping and bearing arms. The strength of a liberty claim must be assessed in connection with its status in the democratic process. And in this case, no one disputes "that opponents of [gun] control have considerable political power and do not seem *3116 to be at a systematic disadvantage in the democratic process," or that "the widespread commitment to an individual right to own guns ... operates as a safeguard against excessive or unjustified gun control laws."48 Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L.Rev. 246, 260 (2008). Indeed, there is a good deal of evidence to suggest that, if anything, American lawmakers tend to under regulate guns, relative to the policy views expressed by majorities in opinion polls. See K. Goss, Disarmed: The Missing Movement for Gun Control in America 6 (2006). If a particular State or locality has enacted some "improvident" gun-control measures, as petitioners believe Chicago has done, there is no apparent reason to infer that the mistake will not "eventually be rectified by the democratic process." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).

This is not a case, then, that involves a "special condition" that "may call for a correspondingly more searching judicial inquiry." Carolene Products, 304 U.S., at 153, n. 4, 58 S.Ct. 778. Neither petitioners nor those most zealously committed to their views represent a group or a claim that is liable to receive unfair treatment at the hands of the majority. On the contrary, petitioners' views are supported by powerful participants in the legislative process. Petitioners have given us no reason to believe that the interest in keeping and bearing arms entails any special need for judicial lawmaking, or that federal judges are more qualified to craft appropriate rules than the people's elected representatives. Having failed to show why their asserted interest is intrinsic to the concept of ordered liberty or vulnerable to maltreatment in the political arena, they have failed to show why "the word liberty in the Fourteenth Amendment" should be "held to prevent the natural outcome of a dominant opinion" about how to deal with the problem of handgun violence in the city of Chicago. Lochner, 198 U.S., at 76, 25 S.Ct. 539 (Holmes, J., dissenting).

VI

The preceding sections have already addressed many of the points made by Justice SCALIA in his concurrence. But in light of that opinion's fixation on this one, it is appropriate to say a few words about Justice SCALIA's broader claim: that his preferred method of substantive due process analysis, a method "that makes the traditions of our people paramount," ante, at 3050, is both more restrained and more facilitative of democracy than the method I have outlined. Colorful as it is, Justice SCALIA's critique does not have nearly as much force as does his rhetoric. His theory of substantive due process, moreover, comes with its own profound difficulties.

Although Justice SCALIA aspires to an "objective," "neutral" method of substantive due process analysis, ante, at 3055-3056, his actual method is nothing of the sort. Under the "historically focused" approach he advocates, ante, at 3057, numerous threshold questions arise before one ever gets to the history. At what level of generality should one frame the liberty interest in question? See n. 25, supra. What does it mean for a right to be "`deeply rooted in this Nation's history and tradition,'" ante, at 3026-3027 (quoting Glucksberg, 521 U.S., at 721, 117 S.Ct. 2302)? By what standard will that proposition be tested? Which types of sources will count, and how will those sources be *3117 weighed and aggregated? There is no objective, neutral answer to these questions. There is not even a theory—at least, Justice SCALIA provides none—of how to go about answering them.

Nor is there any escaping Palko, it seems. To qualify for substantive due process protection, Justice SCALIA has stated, an asserted liberty right must be not only deeply rooted in American tradition, "but it must also be implicit in the concept of ordered liberty." Lawrence, 539 U.S., at 593, n. 3, 123 S.Ct. 2472 (dissenting opinion) (internal quotation marks omitted). Applying the latter, Palko-derived half of that test requires precisely the sort of reasoned judgment—the same multifaceted evaluation of the right's contours and consequences—that Justice SCALIA mocks in his concurrence today.

So does applying the first half. It is hardly a novel insight that history is not an objective science, and that its use can therefore "point in any direction the judges favor," ante, at 3058 (opinion of SCALIA, J.). Yet 21 years after the point was brought to his attention by Justice Brennan, Justice SCALIA remains "oblivious to the fact that [the concept of `tradition'] can be as malleable and elusive as `liberty' itself." Michael H., 491 U.S., at 137, 109 S.Ct. 2333 (dissenting opinion). Even when historical analysis is focused on a discrete proposition, such as the original public meaning of the Second Amendment, the evidence often points in different directions. The historian must choose which pieces to credit and which to discount, and then must try to assemble them into a coherent whole. In Heller, Justice SCALIA preferred to rely on sources created much earlier and later in time than the Second Amendment itself, see, e.g., 554 U.S., at ___, 128 S.Ct., at 2789-2790 (consulting late 19th-century treatises to ascertain how Americans would have read the Amendment's preamble in 1791); I focused more closely on sources contemporaneous with the Amendment's drafting and ratification.49 No mechanical yardstick can measure which of us was correct, either with respect to the materials we chose to privilege or the insights we gleaned from them.

The malleability and elusiveness of history increase exponentially when we move from a pure question of original meaning, as in Heller, to Justice SCALIA's theory of substantive due process. At least with the former sort of question, the judge can focus on a single legal provision; the temporal scope of the inquiry is (or should be) relatively bounded; and there is substantial agreement on what sorts of authorities merit consideration. With Justice SCALIA's approach to substantive due process, these guideposts all fall away. The judge must canvas the entire landscape of American law as it has evolved through time, and perhaps older laws as well, see, e.g., Lawrence, 539 U.S., at 596, 123 S.Ct. 2472 (SCALIA, J., dissenting) (discussing "`ancient roots'" of proscriptions against sodomy (quoting Bowers v. Hardwick, 478 U.S. 186, 192, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)), pursuant to a standard (deeply rootedness) that has never been defined. In conducting this rudderless, panoramic tour of American legal history, the judge has more than ample opportunity to "look over the heads of the crowd and pick out [his] friends," Roper v. Simmons, 543 U.S. *3118 551, 617, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (SCALIA, J., dissenting).

My point is not to criticize judges' use of history in general or to suggest that it always generates indeterminate answers; I have already emphasized that historical study can discipline as well as enrich substantive due process analysis. My point is simply that Justice SCALIA's defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtues, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his historical analysis. Worse, they may be buried in the analysis. At least with my approach, the judge's cards are laid on the table for all to see, and to critique. The judge must exercise judgment, to be sure. When answering a constitutional question to which the text provides no clear answer, there is always some amount of discretion; our constitutional system has always depended on judges' filling in the document's vast open spaces.50 But there is also transparency.

Justice SCALIA's approach is even less restrained in another sense: It would effect a major break from our case law outside of the "incorporation" area. Justice SCALIA does not seem troubled by the fact that his method is largely inconsistent with the Court's canonical substantive due process decisions, ranging from Meyer, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, and Pierce, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, in the 1920's, to Griswold, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, in the 1960's, to Lawrence, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508, in the 2000's. To the contrary, he seems to embrace this dissonance. My method seeks to synthesize dozens of cases on which the American people have relied for decades. Justice SCALIA's method seeks to vaporize them. So I am left to wonder, which of us is more faithful to this Nation's constitutional history? And which of us is more faithful to the values and commitments of the American people, as they stand today? In 1967, when the Court held in Loving, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, that adults have a liberty-based as well as equality-based right to wed persons of another race, interracial marriage was hardly "deeply rooted" in American tradition. Racial segregation and subordination were deeply rooted. The Court's substantive due process holding was nonetheless correct—and we should be wary of any interpretive theory that implies, emphatically, that it was not.

Which leads me to the final set of points I wish to make: Justice SCALIA's method invites not only bad history, but also bad constitutional law. As I have already explained, in evaluating a claimed liberty interest (or any constitutional claim for that matter), it makes perfect sense to give history significant weight: Justice SCALIA's position is closer to my own than he apparently feels comfortable acknowledging. But it makes little sense to give history dispositive weight in every case. And it makes especially little sense to answer questions like whether the right to bear arms is "fundamental" by focusing only on the past, given that both the practical significance and the public understandings of such a right often change as society changes. What if the evidence had shown that, whereas at one time firearm possession contributed substantially to personal liberty and safety, nowadays it contributes nothing, or even tends to undermine them? Would it still have been reasonable to constitutionalize the right?

*3119 The concern runs still deeper. Not only can historical views be less than completely clear or informative, but they can also be wrong. Some notions that many Americans deeply believed to be true, at one time, turned out not to be true. Some practices that many Americans believed to be consistent with the Constitution's guarantees of liberty and equality, at one time, turned out to be inconsistent with them. The fact that we have a written Constitution does not consign this Nation to a static legal existence. Although we should always "pa[y] a decent regard to the opinions of former times," it "is not the glory of the people of America" to have "suffered a blind veneration for antiquity." The Federalist No. 14, p. 99, 104 (C. Rossiter ed. 1961) (J. Madison). It is not the role of federal judges to be amateur historians. And it is not fidelity to the Constitution to ignore its use of deliberately capacious language, in an effort to transform foundational legal commitments into narrow rules of decision.

As for "the democratic process," ante, at 3057-3058, a method that looks exclusively to history can easily do more harm than good. Just consider this case. The net result of Justice SCALIA's supposedly objective analysis is to vest federal judges— ultimately a majority of the judges on this Court—with unprecedented lawmaking powers in an area in which they have no special qualifications, and in which the give-and-take of the political process has functioned effectively for decades. Why this "intrudes much less upon the democratic process," ante, at 3058, than an approach that would defer to the democratic process on the regulation of firearms is, to say the least, not self-evident. I cannot even tell what, under Justice SCALIA's view, constitutes an "intrusion."

It is worth pondering, furthermore, the vision of democracy that underlies Justice SCALIA's critique. Because very few of us would welcome a system in which majorities or powerful interest groups always get their way. Under our constitutional scheme, I would have thought that a judicial approach to liberty claims such as the one I have outlined—an approach that investigates both the intrinsic nature of the claimed interest and the practical significance of its judicial enforcement, that is transparent in its reasoning and sincere in its effort to incorporate constraints, that is guided by history but not beholden to it, and that is willing to protect some rights even if they have not already received uniform protection from the elected branches—has the capacity to improve, rather than "[im]peril," ante, at 3058, our democracy. It all depends on judges' exercising careful, reasoned judgment. As it always has, and as it always will.

VII

The fact that the right to keep and bear arms appears in the Constitution should not obscure the novelty of the Court's decision to enforce that right against the States. By its terms, the Second Amendment does not apply to the States; read properly, it does not even apply to individuals outside of the militia context. The Second Amendment was adopted to protect the States from federal encroachment. And the Fourteenth Amendment has never been understood by the Court to have "incorporated" the entire Bill of Rights. There was nothing foreordained about today's outcome.

Although the Court's decision in this case might be seen as a mere adjunct to its decision in Heller, the consequences could prove far more destructive—quite literally—to our Nation's communities and to our constitutional structure. Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth *3120 Amendment analogue are limited, at least for now, to the home. But neither the "assurances" provided by the plurality, ante, at 3047-3048, nor the many historical sources cited in its opinion should obscure the reality that today's ruling marks a dramatic change in our law—or that the Justices who have joined it have brought to bear an awesome amount of discretion in resolving the legal question presented by this case.

I would proceed more cautiously. For the reasons set out at length above, I cannot accept either the methodology the Court employs or the conclusions it draws. Although impressively argued, the majority's decision to overturn more than a century of Supreme Court precedent and to unsettle a much longer tradition of state practice is not, in my judgment, built "upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms." Griswold, 381 U.S., at 501, 85 S.Ct. 1678 (Harlan, J., concurring in judgment).

Accordingly, I respectfully dissent.

1

See United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894). This is not to say that I agree with all other aspects of these decisions.

2

Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L.Rev. 383, 406 (2008) (finding "some support in the legislative history for no fewer than four interpretations" of the Privileges or Immunities Clause, two of which contradict petitioners' submission); Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L.J. 219, 255-277 (2009) (providing evidence that the Clause was originally conceived of as an antidiscrimination measure, guaranteeing equal rights for black citizens); Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemporary Legal Issues 361 (2009) (detailing reasons to doubt that the Clause was originally understood to apply the Bill of Rights to the States); Hamburger, Privileges or Immunities, 105 Nw. U.L.Rev. (forthcoming 2011), online at http://ssrn.com/abstract=1557870 (as visited June 25, 2010, and available in Clerk of Court's case file) (arguing that the Clause was meant to ensure freed slaves were afforded "the Privileges and Immunities" specified in Article IV, § 2, cl. 1 of the Constitution). Although he urges its elevation in our doctrine, Justice THOMAS has acknowledged that, in seeking to ascertain the original meaning of the Privileges or Immunities Clause, "[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873." Saenz v. Roe, 526 U.S. 489, 522, n. 1, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (dissenting opinion); accord, ante, at 3030-3031 (plurality opinion).

3

It is no secret that the desire to "displace" major "portions of our equal protection and substantive due process jurisprudence" animates some of the passion that attends this interpretive issue. Saenz, 526 U.S., at 528, 119 S.Ct. 1518 (THOMAS, J., dissenting).

4

Wilkinson, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J.L. & Pub. Pol'y 43, 52 (1989). Judge Wilkinson's point is broader than the privileges or immunities debate. As he observes, "there may be more structure imposed by provisions subject to generations of elaboration and refinement than by a provision in its pristine state. The fortuities of uneven constitutional development must be respected, not cast aside in the illusion of reordering the landscape anew." Id., at 51-52; see also Washington v. Glucksberg, 521 U.S. 702, 759, n. 6, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Souter, J., concurring in judgment) (acknowledging that, "[t]o a degree," the Slaughter-House "decision may have led the Court to look to the Due Process Clause as a source of substantive rights").

5

See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Commentary 315, 326-327 (1999) (concluding that founding-era "American statesmen accustomed to viewing due process through the lens of [Sir Edward] Coke and [William] Blackstone could [not] have failed to understand due process as encompassing substantive as well as procedural terms"); Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 594 (2009) (arguing "that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed judicial recognition and enforcement of unenumerated substantive rights"); Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 Am. J. Legal Hist. 305, 317-318 (1988) (explaining that in the antebellum era a "substantial number of states," as well as antislavery advocates, "imbued their [constitutions'] respective due process clauses with a substantive content"); Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L.Rev. 1221, 1297, n. 247 (1995) ("[T]he historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government deprivations of `life, liberty, or property, without due process of law' would have understood that ban as having substantive as well as procedural content, given that era's premise that, to qualify as `law,' an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness"); see also Stevens, The Third Branch of Liberty, 41 U. Miami L.Rev. 277, 290 (1986) ("In view of the number of cases that have given substantive content to the term liberty, the burden of demonstrating that this consistent course of decision was unfaithful to the intent of the Framers is surely a heavy one").

6

1 L. Tribe, American Constitutional Law § 8-1, p. 1335 (3d ed.2000).

7

The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

8

Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L.Rev. 13, 20 (1992); see Fitzgerald, 523 F.2d, at 719-720; Stevens, 41 U. Miami L.Rev., at 286-289; see also Greene, The So-Called Right to Privacy, 43 U.C.D.L.Rev. 715, 725-731 (2010).

9

See also Gitlow, 268 U.S., at 672, 45 S.Ct. 625 (Holmes, J., dissenting) ("The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word `liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States"). Subsequent decisions repeatedly reaffirmed that persons hold free speech rights against the States on account of the Fourteenth Amendment's liberty clause, not the First Amendment per se. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 466, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 95, and n. 7, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); see also McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 336, n. 1, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) ("The term `liberty' in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States"). Classic opinions written by Justice Cardozo and Justice Frankfurter endorsed the same basic approach to "incorporation," with the Fourteenth Amendment taken as a distinct source of rights independent from the first eight Amendments. Palko v. Connecticut, 302 U.S. 319, 322-328, 58 S.Ct. 149, 82 L.Ed. 288 (1937) (opinion for the Court by Cardozo, J.); Adamson v. California, 332 U.S. 46, 59-68, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (Frankfurter, J., concurring).

10

See also Wolf v. Colorado, 338 U.S. 25, 26, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) ("The notion that the `due process of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution ... has been rejected by this Court again and again, after impressive consideration.... The issue is closed"). Wolf's holding on the exclusionary rule was overruled by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), but the principle just quoted has never been disturbed. It is notable that Mapp, the case that launched the modern "doctrine of ad hoc," "`jot-for-jot'" incorporation, Williams v. Florida, 399 U.S. 78, 100-101, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Harlan, J., concurring in result), expressly held "that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments." 367 U.S., at 657, 81 S.Ct. 1684 (emphasis added).

11

I can hardly improve upon the many passionate defenses of this position that Justice Harlan penned during his tenure on the Court. See Williams, 399 U.S., at 131, n. 14, 90 S.Ct. 1914 (opinion concurring in result) (cataloguing opinions).

12

See, e.g., Pet. for Cert. in Bowen v. Oregon, O.T.2009, No. 08-1117, p. i, cert. denied, 558 U.S. ___, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009) (request to overrule Apodaca); Pet. for Cert. in Lee v. Louisiana, O.T.2008, No. 07-1523, p. i, cert. denied, 555 U.S. ___, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008) (same); Pet. for Cert. in Logan v. Florida, O.T.2007, No. 07-7264, pp. 14-19, cert. denied, 552 U.S. 1189, 128 S.Ct. 1222, 170 L.Ed.2d 76 (2008) (request to overrule Williams).

13

The vast majority of States already recognize a right to keep and bear arms in their own constitutions, see Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191 (2006) (cataloguing provisions); Brief for Petitioners 69 (observing that "[t]hese Second Amendment analogs are effective and consequential"), but the States vary widely in their regulatory schemes, their traditions and cultures of firearm use, and their problems relating to gun violence. If federal and state courts must harmonize their review of gun-control laws under the Second Amendment, the resulting jurisprudence may prove significantly more deferential to those laws than the status quo ante. Once it has been established that a single legal standard must govern nationwide, federal courts will face a profound pressure to reconcile that standard with the diverse interests of the States and their long history of regulating in this sensitive area. Cf. Williams, 399 U.S., at 129-130, 90 S.Ct. 1914 (Harlan, J., concurring in result) (noting "`backlash'" potential of jot-for-jot incorporation); Grant, Felix Frankfurter: A Dissenting Opinion, 12 UCLA L.Rev. 1013, 1038 (1965) ("If the Court will not reduce the requirements of the fourteenth amendment below the federal gloss that now overlays the Bill of Rights, then it will have to reduce that gloss to the point where the states can live with it"). Amici argue persuasively that, post-"incorporation," federal courts will have little choice but to fix a highly flexible standard of review if they are to avoid leaving federalism and the separation of powers—not to mention gun policy—in shambles. See Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae (hereinafter Brady Center Brief).

14

Justice Cardozo's test itself built upon an older line of decisions. See, e.g., Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 237, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (discussing "limitations on [state] power, which grow out of the essential nature of all free governments [and] implied reservations of individual rights, ... and which are respected by all governments entitled to the name" (internal quotation marks omitted)).

15

See Palko, 302 U.S., at 326, n. 3, 58 S.Ct. 149; see also, e.g., Lawrence v. Texas, 539 U.S. 558, 572-573, 576-577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); Glucksberg, 521 U.S., at 710-711, and n. 8, 117 S.Ct. 2258.

16

I acknowledge that some have read the Court's opinion in Glucksberg as an attempt to move substantive due process analysis, for all purposes, toward an exclusively historical methodology—and thereby to debilitate the doctrine. If that were ever Glucksberg's aspiration, Lawrence plainly renounced it. As between Glucksberg and Lawrence, I have little doubt which will prove the more enduring precedent.

17

The Court almost never asked whether the guarantee in question was deeply rooted in founding-era practice. See Brief for Respondent City of Chicago et al. 31, n. 17 (hereinafter Municipal Respondents' Brief) (noting that only two opinions extensively discussed such history).

18

Cf. Robinson v. California, 370 U.S. 660, 666-668, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (invalidating state statute criminalizing narcotics addiction as "cruel and unusual punishment in violation of the Fourteenth Amendment" based on nature of the alleged "`crime,'" without historical analysis); Brief for Respondent National Rifle Association of America, Inc., et al. 29 (noting that "lynchpin" of incorporation test has always been "the importance of the right in question to... `liberty'" and to our "system of government").

19

I do not mean to denigrate this function, or to imply that only "new rights"—whatever one takes that term to mean—ought to "get in" the substantive due process door. Ante, at 3052-3053 (SCALIA, J., concurring).

20

See Bowers v. Hardwick, 478 U.S. 186, 199, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Blackmun, J., dissenting) ("Like Justice Holmes, I believe that `[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past'" (quoting Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897))).

21

Justice KENNEDY has made the point movingly:

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence, 539 U.S., at 578-579, 123 S.Ct. 2472.

22

Contrary to Justice SCALIA's suggestion, I emphatically do not believe that "only we judges" can interpret the Fourteenth Amendment, ante, at 3052, or any other constitutional provision. All Americans can; all Americans should. I emphatically do believe that we judges must exercise—indeed, cannot help but exercise—our own reasoned judgment in so doing. Justice SCALIA and I are on common ground in maintaining that courts should be "guided by what the American people throughout our history have thought." Ibid. Where we part ways is in his view that courts should be guided only by historical considerations.

There is, moreover, a tension between Justice SCALIA's concern that "courts have the last word" on constitutional questions, ante, at 3052, n. 2, on the one hand, and his touting of the Constitution's Article V amendment process, ante, at 3051-3052, on the other. The American people can of course reverse this Court's rulings through that same process.

23

In assessing concerns about the "open-ended[ness]" of this area of law, Collins, 503 U.S., at 125, 112 S.Ct. 1061, one does well to keep in view the malleability not only of the Court's "deeply rooted"/fundamentality standard but also of substantive due process' constitutional cousin, "equal protection" analysis. Substantive due process is sometimes accused of entailing an insufficiently "restrained methodology." Glucksberg, 521 U.S., at 721, 117 S.Ct. 2258. Yet "the word `liberty' in the Due Process Clause seems to provide at least as much meaningful guidance as does the word `equal' in the Equal Protection Clause." Post, The Supreme Court 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L.Rev. 4, 94, n. 440 (2003). And "[i]f the objection is that the text of the [Due Process] Clause warrants providing only protections of process rather than protections of substance," "it is striking that even those Justices who are most theoretically opposed to substantive due process, like Scalia and Rehnquist, are also nonetheless enthusiastic about applying the equal protection component of the Due Process Clause of the Fifth Amendment to the federal government." Ibid. (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 213-231, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)).

24

That one eschews a comprehensive theory of liberty does not, pace Justice SCALIA, mean that one lacks "a coherent theory of the Due Process Clause," ante, at 3052. It means that one lacks the hubris to adopt a rigid, context-independent definition of a constitutional guarantee that was deliberately framed in open-ended terms.

25

The notion that we should define liberty claims at the most specific level available is one of Justice SCALIA's signal contributions to the theory of substantive due process. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 127-128, n. 6, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (opinion of SCALIA, J.); ante, at 3053-3054 (opinion of SCALIA, J.). By so narrowing the asserted right, this approach "loads the dice" against its recognition, Roosevelt, Forget the Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J. Const. L. 983, 1002, n. 73 (2006): When one defines the liberty interest at issue in Lawrence as the freedom to perform specific sex acts, ante, at 3051, the interest starts to look less compelling. The Court today does not follow Justice SCALIA's "particularizing" method, Katzenbach v. Morgan, 384 U.S. 641, 649, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), as it relies on general historical references to keeping and bearing arms, without any close study of the States' practice of regulating especially dangerous weapons.

26

In District of Columbia v. Heller, 554 U.S. ___, ___, 128 S.Ct. 2783, 2799, 171 L.Ed.2d 637, the Court concluded, over my dissent, that the Second Amendment confers "an individual right to keep and bear arms" disconnected from militia service. If that conclusion were wrong, then petitioners'"incorporation" claim clearly would fail, as they would hold no right against the Federal Government to be free from regulations such as the ones they challenge. Cf. post, at 3124. I do not understand petitioners or any of their amici to dispute this point. Yet even if Heller had never been decided—indeed, even if the Second Amendment did not exist—we would still have an obligation to address petitioners' Fourteenth Amendment claim.

27

The village of Oak Park imposes more stringent restrictions that may raise additional complications. See ante, at 3026 (majority opinion) (quoting Oak Park, Ill., Municipal Code §§ 27-2-1 (2007), 27-1-1 (2009)). The Court, however, declined to grant certiorari on the National Rifle Association's challenge to the Oak Park restrictions. Chicago is the only defendant in this case.

28

To the extent that petitioners contend the city of Chicago's registration requirements for firearm possessors also, and separately, violate the Constitution, that claim borders on the frivolous. Petitioners make no effort to demonstrate that the requirements are unreasonable or that they impose a severe burden on the underlying right they have asserted.

29

Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston.

30

See Municipal Respondents' Brief 20, n. 11 (stating that at least 156 Second Amendment challenges were brought in time between Heller's issuance and brief's filing); Brady Center Brief 3 (stating that over 190 Second Amendment challenges were brought in first 18 months since Heller); Brief for Villages of Winnetka and Skokie, Illinois, et al. as Amici Curiae 15 (stating that, in wake of Heller, municipalities have "repealed longstanding handgun laws to avoid costly litigation").

31

See, e.g., Brief for Professors of Philosophy, Criminology, Law, and Other Fields as Amici Curiae; Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 29-45; Brief for 34 California District Attorneys et al. as Amici Curiae 12-31.

32

The argument that this Court should establish any such right, however, faces steep hurdles. All 50 States already recognize self-defense as a defense to criminal prosecution, see 2 P. Robinson, Criminal Law Defenses § 132, p. 96 (1984 and Supp.2009), so this is hardly an interest to which the democratic process has been insensitive. And the States have always diverged on how exactly to implement this interest, so there is wide variety across the Nation in the types and amounts of force that may be used, the necessity of retreat, the rights of aggressors, the availability of the "castle doctrine," and so forth. See Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 9-21; Brief for American Cities et al. as Amici Curiae 17-19; 2 W. LaFave, Substantive Criminal Law § 10.4, pp. 142-160 (2d ed.2003). Such variation is presumed to be a healthy part of our federalist system, as the States and localities select different rules in light of different priorities, customs, and conditions.

As a historical and theoretical matter, moreover, the legal status of self-defense is far more complicated than it might first appear. We have generally understood Fourteenth Amendment "liberty" as something one holds against direct state interference, whereas a personal right of self-defense runs primarily against other individuals; absent government tyranny, it is only when the state has failed to interfere with (violent) private conduct that self-help becomes potentially necessary. Moreover, it was a basic tenet of founding-era political philosophy that, in entering civil society and gaining "the advantages of mutual commerce" and the protections of the rule of law, one had to relinquish, to a significant degree, "that wild and savage liberty" one possessed in the state of nature. 1 W. Blackstone, Commentaries *125; see also, e.g., J. Locke, Second Treatise of Civil Government § 128, pp. 63-64 (J. Gough ed. 1947) (in state of nature man has power "to do whatever he thinks fit for the preservation of himself and others," but this "he gives up when he joins in a ... particular political society"); Green v. Biddle, 8 Wheat. 1, 63, 5 L.Ed. 547 (1823) ("It is a trite maxim, that man gives up a part of his natural liberty when he enters into civil society, as the price of the blessings of that state: and it may be said, with truth, that this liberty is well exchanged for the advantages which flow from law and justice"). Some strains of founding-era thought took a very narrow view of the right to armed self-defense. See, e.g., Brief of Historians on Early American Legal, Constitutional, and Pennsylvania History as Amici Curiae 6-13 (discussing Whig and Quaker theories). Just because there may be a natural or common-law right to some measure of self-defense, it hardly follows that States may not place substantial restrictions on its exercise or that this Court should recognize a constitutional right to the same.

33

The Second Amendment right identified in Heller is likewise clearly distinct from a right to protect oneself. In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders. But even still, the Court made clear that self-defense plays a limited role in determining the scope and substance of the Amendment's guarantee. The Court struck down the District of Columbia's handgun ban not because of the utility of handguns for lawful self-defense, but rather because of their popularity for that purpose. See 554 U.S., at ___, 128 S.Ct., at 2818-2819. And the Court's common-use gloss on the Second Amendment right, see id., at ___, 128 S.Ct., at 2817, as well as its discussion of permissible limitations on the right, id., at ___, 128 S.Ct., at 2816-2817, had little to do with self-defense.

34

Brady Center Brief 11 (extrapolating from Government statistics); see also Brief for American Public Health Association et al. as Amici Curiae 6-7 (reporting estimated social cost of firearm-related violence of $100 billion per year).

35

Bogus, Gun Control and America's Cities: Public Policy and Politics, 1 Albany Govt. L.Rev. 440, 447 (2008) (drawing on FBI data); see also Heller, 554 U.S., at ___, 128 S.Ct., at 2797-2798 (BREYER, J., dissenting) (providing additional statistics on handgun violence); Municipal Respondents' Brief 13-14 (same).

36

Justice SCALIA worries that there is no "objective" way to decide what is essential to a "liberty-filled" existence: Better, then, to ignore such messy considerations as how an interest actually affects people's lives. Ante, at 3055. Both the constitutional text and our cases use the term "liberty," however, and liberty is not a purely objective concept. Substantive due process analysis does not require any "political" judgment, ibid. It does require some amount of practical and normative judgment. The only way to assess what is essential to fulfilling the Constitution's guarantee of "liberty," in the present day, is to provide reasons that apply to the present day. I have provided many; Justice SCALIA and the Court have provided virtually none.

Justice SCALIA also misstates my argument when he refers to "the right to keep and bear arms," without qualification. Ante, at 3055. That is what the Second Amendment protects against Federal Government infringement. I have taken pains to show why the Fourteenth Amendment liberty interest asserted by petitioners—the interest in keeping a firearm of one's choosing in the home—is not necessarily coextensive with the Second Amendment right.

37

It has not escaped my attention that the Due Process Clause refers to "property" as well as "liberty." Cf. ante, at 3051, n. 1, 3055, n. 6 (opinion of SCALIA, J.). Indeed, in Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion), I alone viewed "the critical question" as "whether East Cleveland's housing ordinance [was] a permissible restriction on appellant's right to use her own property as she sees fit," id., at 513, 97 S.Ct. 1932 (opinion concurring in judgment). In that case, unlike in this case, the asserted property right was coextensive with a right to organize one's family life, and I could find "no precedent" for the ordinance at issue, which "exclude[d] any of an owner's relatives from the group of persons who may occupy his residence on a permanent basis." Id., at 520, 97 S.Ct. 1932. I am open to property claims under the Fourteenth Amendment. This case just involves a weak one. And ever since the Court "incorporated" the more specific property protections of the Takings Clause in 1897, see Chicago, B. & Q.R. Co., 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979, substantive due process doctrine has focused on liberty.

38

Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 913-914, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (STEVENS, J., concurring in part and dissenting in part).

39

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

40

Contrary to Justice SCALIA's suggestion, this point is perfectly compatible with my opinion for the Court in Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Cf. ante, at 3056. Like the Court itself, I have never agreed with Justice THOMAS' view that the Establishment Clause is a federalism provision. But I agree with his underlying logic: If a clause in the Bill of Rights exists to safeguard federalism interests, then it makes little sense to "incorporate" it. Justice SCALIA's further suggestion that I ought to have revisited the Establishment Clause debate in this opinion, ibid., is simply bizarre.

41

See post, at 3132-3133; Municipal Respondents' Brief 62-69; Brief for 34 Professional Historians and Legal Historians as Amici Curiae 22-26; Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law. 1, 73-75 (2009). The plurality insists that the Reconstruction-era evidence shows the right to bear arms was regarded as "a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner." Ante, at 3043-3044. That may be so, but it does not resolve the question whether the Fourteenth Amendment's Due Process Clause was originally understood to encompass a right to keep and bear arms, or whether it ought to be so construed now.

42

I am unclear what the plurality means when it refers to "the paucity of precedent sustaining bans comparable to those at issue here." Ante, at 3047. There is only one ban at issue here—the city of Chicago's handgun prohibition—and the municipal respondents cite far more than "one case," ibid., from the post-Reconstruction period. See Municipal Respondents' Brief 24-30. The evidence adduced by respondents and their amici easily establishes their contentions that the "consensus in States that recognize a firearms right is that arms possession, even in the home, is . . . subject to interest-balancing," id., at 24; and that the practice of "[b]anning weapons routinely used for self-defense," when deemed "necessary for the public welfare," "has ample historical pedigree," id., at 28. Petitioners do not even try to challenge these contentions.

43

I agree with Justice SCALIA that a history of regulation hardly proves a right is not "of fundamental character." Ante, at 3056-3057. An unbroken history of extremely intensive, carefully considered regulation does, however, tend to suggest that it is not.

44

The Heller majority asserted that "the adjective `well-regulated'" in the Second Amendment's preamble "implies nothing more than the imposition of proper discipline and training." 554 U.S., at ___, 128 S.Ct., at 2800. It is far from clear that this assertion is correct. See, e.g., U.S. Const., Art. 1, § 4, cl. 1; § 8, cls. 3, 5, 14; § 9, cl. 6; Art. 3, § 2, cl. 2; Art. 4, § 2, cl. 3; § 3, cl. 2 (using "regulate" or "Regulation" in manner suggestive of broad, discretionary governmental authority); Art. 1, § 8, cl. 16 (invoking powers of "disciplining" and "training" Militia in manner suggestive of narrower authority); Heller, 554 U.S., at ___, 128 S.Ct., at 2790-2791 (investigating Constitution's separate references to "people" as clue to term's meaning in Second Amendment); cf. Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L.Rev. 487, 504 (2004) ("The authors of this curious interpretation of the Second Amendment have constructed a fantasy world where words mean their opposite, and regulation is really anti-regulation"). But even if the assertion were correct, the point would remain that the preamble envisions an active state role in overseeing how the right to keep and bear arms is utilized, and in ensuring that it is channeled toward productive ends.

45

Cf. Heller, 554 U.S., at ___, 128 S.Ct., at 2856-2857 (BREYER, J., dissenting) (detailing evidence showing that a "disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime").

46

The fact that Chicago's handgun murder rate may have "actually increased since the ban was enacted," ante, at 3026 (majority opinion), means virtually nothing in itself. Countless factors unrelated to the policy may have contributed to that trend. Without a sophisticated regression analysis, we cannot even begin to speculate as to the efficacy or effects of the handgun ban. Even with such an analysis, we could never be certain as to the determinants of the city's murder rate.

47

In some sense, it is no doubt true that the "best" solution is elusive for many "serious social problems." Ante, at 3056-3057 (opinion of SCALIA, J.). Yet few social problems have raised such heated empirical controversy as the problem of gun violence. And few, if any, of the liberty interests we have recognized under the Due Process Clause have raised as many complications for judicial oversight as the interest that is recognized today. See post, at 3125-3128.

I agree with the plurality that for a right to be eligible for substantive due process recognition, there need not be "a `popular consensus' that the right is fundamental." Ante, at 3048-3049. In our remarkably diverse, pluralistic society, there will almost never be such uniformity of opinion. But to the extent that popular consensus is relevant, I do not agree with the Court that the amicus brief filed in this case by numerous state attorneys general constitutes evidence thereof. Ante, at 3048-3049. It is puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item. Cf. post, at 3124-3125.

48

Likewise, no one contends that those interested in personal self-defense—every American, presumably—face any particular disadvantage in the political process. All 50 States recognize self-defense as a defense to criminal prosecution. See n. 32, supra.

49

See Heller, 554 U.S., at ___, 128 S.Ct., at 2836-2837 (STEVENS, J., dissenting) ("Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone's Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history"); see also post, at 3120-3122 (discussing professional historians' criticisms of Heller).

50

Indeed, this is truly one of our most deeply rooted legal traditions.

Justice BREYER, with whom Justice GINSBURG and Justice SOTOMAYOR join, dissenting.

In my view, Justice STEVENS has demonstrated that the Fourteenth Amendment's guarantee of "substantive due process" does not include a general right to keep and bear firearms for purposes of private self-defense. As he argues, the Framers did not write the Second Amendment with this objective in view. See ante, at 3111-3112 (dissenting opinion). Unlike other forms of substantive liberty, the carrying of arms for that purpose often puts others' lives at risk. See ante, at 3107-3109. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation. See ante, at 3112-3116.

The Court, however, does not expressly rest its opinion upon "substantive due process" concerns. Rather, it directs its attention to this Court's "incorporation" precedents and asks whether the Second Amendment right to private self-defense is "fundamental" so that it applies to the States through the Fourteenth Amendment. See ante, at 3031-3036.

I shall therefore separately consider the question of "incorporation." I can find nothing in the Second Amendment's text, history, or underlying rationale that could warrant characterizing it as "fundamental" insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government. I therefore conclude that the Fourteenth Amendment does not "incorporate" the Second Amendment's right "to keep and bear Arms." And I consequently dissent.

I

The Second Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Two years ago, in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Court rejected the pre-existing judicial consensus that the Second Amendment was primarily concerned with the need to maintain a "well regulated Militia." See id., at ___, 128 S.Ct., at 2823 and n. 2, 2842-2846 (STEVENS, J., dissenting); *3121 United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Although the Court acknowledged that "the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right ... was codified in a written Constitution," the Court asserted that "individual self defense ... was the central component of the right itself." Heller, supra, at ___, 128 S.Ct., at 2801 (first emphasis added). The Court went on to hold that the Second Amendment restricted Congress' power to regulate handguns used for self-defense, and the Court found unconstitutional the District of Columbia's ban on the possession of handguns in the home. Id., at ___, 128 S.Ct., at 2821-2822.

The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority's historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.

Since Heller, historians, scholars, and judges have continued to express the view that the Court's historical account was flawed. See, e.g., Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L.Rev. 1295 (2009); Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L.Rev. 267 (2008); P. Charles, The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009); Merkel, The District of Columbia v. Heller and Antonin Scalia's Perverse Sense of Originalism, 13 Lewis & Clark L.Rev. 349 (2009); Kozuskanich, Originalism in a Digital Age: An Inquiry into the Right to Bear Arms, 29 J. Early Republic 585 (2009); Cornell, St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology, 103 Nw. U.L.Rev. 1541 (2009); Posner, In Defense of Looseness: The Supreme Court and Gun Control, New Republic, Aug. 27, 2008, pp. 32-35; see also Epstein, A Structural Interpretation of the Second Amendment: Why Heller is (Probably) Wrong on Originalist Grounds, 59 Syracuse L.Rev. 171 (2008).

Consider as an example of these critiques an amici brief filed in this case by historians who specialize in the study of the English Civil Wars. They tell us that Heller misunderstood a key historical point. See Brief for English/Early American Historians as Amici Curiae (hereinafter English Historians' Brief) (filed by 21 professors at leading universities in the United States, United Kingdom, and Australia). Heller's conclusion that "individual self-defense" was "the central component" of the Second Amendment's right "to keep and bear Arms" rested upon its view that the Amendment "codified a pre-existing right" that had "nothing whatever to do with service in a militia." 554 U.S., at ___, 128 S.Ct., at 2797, 2801-2802. That view in turn rested in significant part upon Blackstone having described the right as "`the right of having and using arms for self-preservation and defence,'" which reflected the provision in the English Declaration of Right of 1689 that gave the King's Protestant "`subjects'" the right to "`have Arms for their defence suitable to their Conditions, and as allowed by law.'" Id., at ___, 128 S.Ct., at 2798 (quoting 1 W. Blackstone, Commentaries on the Laws of England 140 (1765) (hereinafter Blackstone) and 1 W. & M., c. 2, § 7, in 3 Eng. Stat. at Large 441 (1689)). The Framers, said the majority, understood that right "as permitting a citizen to *3122 `repe[l] force by force' when `the intervention of society in his behalf, may be too late to prevent an injury.'" 554 U.S., at ___, 128 S.Ct., at 2799 (quoting St. George Tucker, 1 Blackstone's Commentaries 145-146, n. 42 (1803)).

The historians now tell us, however, that the right to which Blackstone referred had, not nothing, but everything, to do with the militia. As properly understood at the time of the English Civil Wars, the historians claim, the right to bear arms "ensured that Parliament had the power" to arm the citizenry: "to defend the realm" in the case of a foreign enemy, and to "secure the right of `self-preservation,'" or "self-defense," should "the sovereign usurp the English Constitution." English Historians' Brief 3, 8-13, 23-24 (emphasis added). Thus, the Declaration of Right says that private persons can possess guns only "as allowed by law." See id., at 20-24. Moreover, when Blackstone referred to "`the right of having and using arms for self-preservation and defence,'" he was referring to the right of the people "to take part in the militia to defend their political liberties," and to the right of Parliament (which represented the people) to raise a militia even when the King sought to deny it that power. Id., at 4, 24-27 (emphasis added) (quoting 1 Blackstone 140). Nor can the historians find any convincing reason to believe that the Framers had something different in mind than what Blackstone himself meant. Compare Heller, supra, at ___, 128 S.Ct., at 2798-2799 with English Historians' Brief 28-40. The historians concede that at least one historian takes a different position, see id., at 7, but the Court, they imply, would lose a poll taken among professional historians of this period, say, by a vote of 8 to 1.

If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views? See Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 923-924, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (BREYER, J., dissenting) (noting that stare decisis interests are at their lowest with respect to recent and erroneous constitutional decisions that create unworkable legal regimes); Citizens United v. Federal Election Comm'n, 558 U.S. ___, ___, 130 S.Ct. 876, 955-956, ___ L.Ed.2d ___ (2010) (listing similar factors); see also Wallace v. Jaffree, 472 U.S. 38, 99, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (REHNQUIST, J., dissenting) ("[S]tare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history"). At the least, where Heller's historical foundations are so uncertain, why extend its applicability?

My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree. It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance. And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process. See ante, at 3097-3099 (STEVENS, J., dissenting) (discussing shortcomings of an exclusively historical approach).

II

A

In my view, taking Heller as a given, the Fourteenth Amendment does not incorporate the Second Amendment right to keep *3123 and bear arms for purposes of private self-defense. Under this Court's precedents, to incorporate the private self-defense right the majority must show that the right is, e.g., "fundamental to the American scheme of justice," Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); see ibid., n. 14; see also ante, at 3050 (plurality opinion) (finding that the right is "fundamental" and therefore incorporated). And this it fails to do.

The majority here, like that in Heller, relies almost exclusively upon history to make the necessary showing. Ante, at 3036-3044. But to do so for incorporation purposes is both wrong and dangerous. As Justice STEVENS points out, our society has historically made mistakes— for example, when considering certain 18th- and 19th-century property rights to be fundamental. Ante, at 3098-3099 (dissenting opinion). And in the incorporation context, as elsewhere, history often is unclear about the answers. See Part I, supra; Part III, infra.

Accordingly, this Court, in considering an incorporation question, has never stated that the historical status of a right is the only relevant consideration. Rather, the Court has either explicitly or implicitly made clear in its opinions that the right in question has remained fundamental over time. See, e.g., Apodaca v. Oregon, 406 U.S. 404, 410, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality opinion) (stating that the incorporation "inquiry must focus upon the function served" by the right in question in "contemporary society" (emphasis added)); Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (noting that the right in question "continues to receive strong support"); Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (same). And, indeed, neither of the parties before us in this case has asked us to employ the majority's history-constrained approach. See Brief for Petitioners 67-69 (arguing for incorporation based on trends in contemporary support for the right); Brief for Respondents City of Chicago et al. 23-31 (hereinafter Municipal Respondents) (looking to current state practices with respect to the right).

I thus think it proper, above all where history provides no clear answer, to look to other factors in considering whether a right is sufficiently "fundamental" to remove it from the political process in every State. I would include among those factors the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution's structural aims, including its division of powers among different governmental institutions (and the people as well). Is incorporation needed, for example, to further the Constitution's effort to ensure that the government treats each individual with equal respect? Will it help maintain the democratic form of government that the Constitution foresees? In a word, will incorporation prove consistent, or inconsistent, with the Constitution's efforts to create governmental institutions well suited to the carrying out of its constitutional promises?

Finally, I would take account of the Framers' basic reason for believing the Court ought to have the power of judicial review. Alexander Hamilton feared granting that power to Congress alone, for he feared that Congress, acting as judges, would not overturn as unconstitutional a popular statute that it had recently enacted, as legislators. The Federalist No. 78, p. 405 (G. Carey & J. McClellan eds. *3124 2001) (A.Hamilton) ("This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours, which" can, at times, lead to "serious oppressions of the minor part in the community"). Judges, he thought, may find it easier to resist popular pressure to suppress the basic rights of an unpopular minority. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). That being so, it makes sense to ask whether that particular comparative judicial advantage is relevant to the case at hand. See, e.g., J. Ely, Democracy and Distrust (1980).

B

How do these considerations apply here? For one thing, I would apply them only to the private self-defense right directly at issue. After all, the Amendment's militia-related purpose is primarily to protect States from federal regulation, not to protect individuals from militia-related regulation. Heller, 554 U.S., at ___, 128 S.Ct., at 2801-2802; see also Miller, 307 U.S., at 178, 59 S.Ct. 816. Moreover, the Civil War Amendments, the electoral process, the courts, and numerous other institutions today help to safeguard the States and the people from any serious threat of federal tyranny. How are state militias additionally necessary? It is difficult to see how a right that, as the majority concedes, has "largely faded as a popular concern" could possibly be so fundamental that it would warrant incorporation through the Fourteenth Amendment. Ante, at 3037-3038. Hence, the incorporation of the Second Amendment cannot be based on the militia-related aspect of what Heller found to be more extensive Second Amendment rights.

For another thing, as Heller concedes, the private self-defense right that the Court would incorporate has nothing to do with "the reason" the Framers "codified" the right to keep and bear arms "in a written Constitution." 554 U.S., at ___, 128 S.Ct., at 2801-2802 (emphasis added). Heller immediately adds that the self-defense right was nonetheless "the central component of the right." Ibid. In my view, this is the historical equivalent of a claim that water runs uphill. See Part I, supra. But, taking it as valid, the Framers' basic reasons for including language in the Constitution would nonetheless seem more pertinent (in deciding about the contemporary importance of a right) than the particular scope 17th- or 18th-century listeners would have then assigned to the words they used. And examination of the Framers' motivation tells us they did not think the private armed self-defense right was of paramount importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1164 (1991) ("[T]o see the [Second] Amendment as primarily concerned with an individual right to hunt, or protect one's home," would be "like viewing the heart of the speech and assembly clauses as the right of persons to meet to play bridge"); see also, e.g., Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi.-Kent L.Rev. 103, 127-128 (2000); Brief for Historians on Early American Legal, Constitutional, and Pennsylvania History as Amici Curiae 22-33.

Further, there is no popular consensus that the private self-defense right described in Heller is fundamental. The plurality suggests that two amici briefs filed in the case show such a consensus, see ante, at 3048-3049, but, of course, numerous amici briefs have been filed opposing incorporation as well. Moreover, every State regulates firearms extensively, and public opinion is sharply divided on the appropriate level of regulation. Much of *3125 this disagreement rests upon empirical considerations. One side believes the right essential to protect the lives of those attacked in the home; the other side believes it essential to regulate the right in order to protect the lives of others attacked with guns. It seems unlikely that definitive evidence will develop one way or the other. And the appropriate level of firearm regulation has thus long been, and continues to be, a hotly contested matter of political debate. See, e.g., Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L.Rev. 191, 201-246 (2008). (Numerous sources supporting arguments and data in Part II-B can be found in the Appendix, infra.)

Moreover, there is no reason here to believe that incorporation of the private self-defense right will further any other or broader constitutional objective. We are aware of no argument that gun-control regulations target or are passed with the purpose of targeting "discrete and insular minorities." Carolene Products Co., supra, at 153, n. 4, 58 S.Ct. 778; see, e.g., ante, at 3115-3116 (STEVENS, J., dissenting). Nor will incorporation help to assure equal respect for individuals. Unlike the First Amendment's rights of free speech, free press, assembly, and petition, the private self-defense right does not comprise a necessary part of the democratic process that the Constitution seeks to establish. See, e.g., Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). Unlike the First Amendment's religious protections, the Fourth Amendment's protection against unreasonable searches and seizures, the Fifth and Sixth Amendments' insistence upon fair criminal procedure, and the Eighth Amendment's protection against cruel and unusual punishments, the private self-defense right does not significantly seek to protect individuals who might otherwise suffer unfair or inhumane treatment at the hands of a majority. Unlike the protections offered by many of these same Amendments, it does not involve matters as to which judges possess a comparative expertise, by virtue of their close familiarity with the justice system and its operation. And, unlike the Fifth Amendment's insistence on just compensation, it does not involve a matter where a majority might unfairly seize for itself property belonging to a minority.

Finally, incorporation of the right will work a significant disruption in the constitutional allocation of decisionmaking authority, thereby interfering with the Constitution's ability to further its objectives.

First, on any reasonable accounting, the incorporation of the right recognized in Heller would amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government. Private gun regulation is the quintessential exercise of a State's "police power"—i.e., the power to "protec[t] ... the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State," by enacting "all kinds of restraints and burdens" on both "persons and property." Slaughter-House Cases, 16 Wall. 36, 62, 21 L.Ed. 394 (1873) (internal quotation marks omitted). The Court has long recognized that the Constitution grants the States special authority to enact laws pursuant to this power. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (noting that States have "great latitude" to use their police powers (internal quotation marks omitted)); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). A decade ago, we wrote that there is "no better example of the police power" than "the *3126 suppression of violent crime." United States v. Morrison, 529 U.S. 598, 618, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). And examples in which the Court has deferred to state legislative judgments in respect to the exercise of the police power are legion. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 270, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (assisted suicide); Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (same); Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954) ("We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless...").

Second, determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions of a kind that legislatures are better able than courts to make. See, e.g., Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 440, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality opinion); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195-196, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997). And it may require this kind of analysis in virtually every case.

Government regulation of the right to bear arms normally embodies a judgment that the regulation will help save lives. The determination whether a gun regulation is constitutional would thus almost always require the weighing of the constitutional right to bear arms against the "primary concern of every government—a concern for the safety and indeed the lives of its citizens." United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). With respect to other incorporated rights, this sort of inquiry is sometimes present. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (free speech); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (religion); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (Fourth Amendment); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (Fifth Amendment); Salerno, supra, at 755, 107 S.Ct. 2095 (bail). But here, this inquiry—calling for the fine tuning of protective rules—is likely to be part of a daily judicial diet.

Given the competing interests, courts will have to try to answer empirical questions of a particularly difficult kind. Suppose, for example, that after a gun regulation's adoption the murder rate went up. Without the gun regulation would the murder rate have risen even faster? How is this conclusion affected by the local recession which has left numerous people unemployed? What about budget cuts that led to a downsizing of the police force? How effective was that police force to begin with? And did the regulation simply take guns from those who use them for lawful purposes without affecting their possession by criminals?

Consider too that countless gun regulations of many shapes and sizes are in place in every State and in many local communities. Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? *3127 Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government's ability to take special measures during, say, national security emergencies? As the questions suggest, state and local gun regulation can become highly complex, and these "are only a few uncertainties that quickly come to mind." Caperton v. A.T. Massey Coal Co., 556 U.S. ___, ___, 129 S.Ct. 2252, 2261, 173 L.Ed.2d 1208 (2009) (ROBERTS, C. J., dissenting).

The difficulty of finding answers to these questions is exceeded only by the importance of doing so. Firearms cause well over 60,000 deaths and injuries in the United States each year. Those who live in urban areas, police officers, women, and children, all may be particularly at risk. And gun regulation may save their lives. Some experts have calculated, for example, that Chicago's handgun ban has saved several hundred lives, perhaps close to 1,000, since it was enacted in 1983. Other experts argue that stringent gun regulations "can help protect police officers operating on the front lines against gun violence," have reduced homicide rates in Washington, D. C., and Baltimore, and have helped to lower New York's crime and homicide rates.

At the same time, the opponents of regulation cast doubt on these studies. And who is right? Finding out may require interpreting studies that are only indirectly related to a particular regulatory statute, say one banning handguns in the home. Suppose studies find more accidents and suicides where there is a handgun in the home than where there is a long gun in the home or no gun at all? To what extent do such studies justify a ban? What if opponents of the ban put forth counter studies?

In answering such questions judges cannot simply refer to judicial homilies, such as Blackstone's 18th-century perception that a man's home is his castle. See 4 Blackstone 223. Nor can the plurality so simply reject, by mere assertion, the fact that "incorporation will require judges to assess the costs and benefits of firearms restrictions." Ante, at 3050. How can the Court assess the strength of the government's regulatory interests without addressing issues of empirical fact? How can the Court determine if a regulation is appropriately tailored without considering its impact? And how can the Court determine if there are less restrictive alternatives without considering what will happen if those alternatives are implemented?

Perhaps the Court could lessen the difficulty of the mission it has created for itself by adopting a jurisprudential approach similar to the many state courts that administer a state constitutional right to bear arms. See infra, at 3130-3131 (describing state approaches). But the Court has not yet done so. Cf. Heller, 544 U.S., at ___, 128 S.Ct., at 2818-2822 (rejecting an "`interest-balancing' approach" similar to that employed by the States); ante, at 3050 (plurality opinion). Rather, the Court has haphazardly created a few simple rules, such as that it will not touch "prohibitions on the possession of firearms by felons and the mentally ill," "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings," or "laws imposing conditions and qualifications on the commercial sale of arms." Heller, 544 U.S., at ___, 128 S.Ct., at 2817; Ante, at 3047 (plurality opinion). But why these rules and not others? Does the Court know that these regulations are justified by some special gun-related risk of death? In fact, the Court does not know. It has simply invented rules that sound sensible without being able to explain why or how Chicago's handgun ban is different.

*3128 The fact is that judges do not know the answers to the kinds of empirically based questions that will often determine the need for particular forms of gun regulation. Nor do they have readily available "tools" for finding and evaluating the technical material submitted by others. District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. ___, ___, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009); see also Turner Broadcasting, 520 U.S., at 195-196, 117 S.Ct. 1174. Judges cannot easily make empirically based predictions; they have no way to gather and evaluate the data required to see if such predictions are accurate; and the nature of litigation and concerns about stare decisis further make it difficult for judges to change course if predictions prove inaccurate. Nor can judges rely upon local community views and values when reaching judgments in circumstances where prediction is difficult because the basic facts are unclear or unknown.

At the same time, there is no institutional need to send judges off on this "mission-almost-impossible." Legislators are able to "amass the stuff of actual experience and cull conclusions from it." United States v. Gainey, 380 U.S. 63, 67, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). They are far better suited than judges to uncover facts and to understand their relevance. And legislators, unlike Article III judges, can be held democratically responsible for their empirically based and value-laden conclusions. We have thus repeatedly affirmed our preference for "legislative not judicial solutions" to this kind of problem, see, e.g., Patsy v. Board of Regents of Fla., 457 U.S. 496, 513, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), just as we have repeatedly affirmed the Constitution's preference for democratic solutions legislated by those whom the people elect.

In New State Ice Co. v. Liebmann, 285 U.S. 262, 310-311, 52 S.Ct. 371, 76 L.Ed. 747 (1932), Justice Brandeis stated in dissent:

"Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the States which ratified it, intended to deprive us of the power to correct [the social problems we face]."

There are 50 state legislatures. The fact that this Court may already have refused to take this wise advice with respect to Congress in Heller is no reason to make matters worse here.

Third, the ability of States to reflect local preferences and conditions—both key virtues of federalism—here has particular importance. The incidence of gun ownership varies substantially as between crowded cities and uncongested rural communities, as well as among the different geographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of Rhode Island, New Jersey, and Massachusetts say the same.

The nature of gun violence also varies as between rural communities and cities. Urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately *3129 greater problems with nonhomicide gun deaths, such as suicides and accidents. And idiosyncratic local factors can lead to two cities finding themselves in dramatically different circumstances: For example, in 2008, the murder rate was 40 times higher in New Orleans than it was in Lincoln, Nebraska.

It is thus unsurprising that States and local communities have historically differed about the need for gun regulation as well as about its proper level. Nor is it surprising that "primarily, and historically," the law has treated the exercise of police powers, including gun control, as "matter[s] of local concern." Medtronic, 518 U.S., at 475, 116 S.Ct. 2240 (internal quotation marks omitted).

Fourth, although incorporation of any right removes decisions from the democratic process, the incorporation of this particular right does so without strong offsetting justification—as the example of Oak Park's handgun ban helps to show. See Oak Park, Ill., Municipal Code, § 27-2-1 (1995). Oak Park decided to ban handguns in 1983, after a local attorney was shot to death with a handgun that his assailant had smuggled into a courtroom in a blanket. Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 1, 21 (hereinafter Oak Park Brief). A citizens committee spent months gathering information about handguns. Id., at 21. It secured 6,000 signatures from community residents in support of a ban. Id., at 21-22. And the village board enacted a ban into law. Id., at 22.

Subsequently, at the urging of ban opponents the Board held a community referendum on the matter. Ibid. The citizens committee argued strongly in favor of the ban. Id., at 22-23. It pointed out that most guns owned in Oak Park were handguns and that handguns were misused more often than citizens used them in self-defense. Id., at 23. The ban opponents argued just as strongly to the contrary. Ibid. The public decided to keep the ban by a vote of 8,031 to 6,368. Ibid. And since that time, Oak Park now tells us, crime has decreased and the community has seen no accidental handgun deaths. Id., at 2.

Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a Nation whose Constitution foresees democratic decisionmaking, is it so fundamental a matter as to require taking that power from the people? What is it here that the people did not know? What is it that a judge knows better?

* * *

In sum, the police power, the superiority of legislative decisionmaking, the need for local decisionmaking, the comparative desirability of democratic decisionmaking, the lack of a manageable judicial standard, and the life-threatening harm that may flow from striking down regulations all argue against incorporation. Where the incorporation of other rights has been at issue, some of these problems have arisen. But in this instance all these problems are present, all at the same time, and all are likely to be present in most, perhaps nearly all, of the cases in which the constitutionality of a gun regulation is at issue. At the same time, the important factors that favor incorporation in other instances— e.g., the protection of broader constitutional objectives—are not present here. The upshot is that all factors militate against incorporation—with the possible exception of historical factors.

III

I must, then, return to history. The plurality, in seeking to justify incorporation, asks whether the interests the Second *3130 Amendment protects are "`deeply rooted in this Nation's history and tradition.'" Ante, at 3036 (quoting Glucksberg, 521 U.S., at 721, 117 S.Ct. 2258; internal quotation marks omitted). It looks to selected portions of the Nation's history for the answer. And it finds an affirmative reply.

As I have made clear, I do not believe history is the only pertinent consideration. Nor would I read history as broadly as the majority does. In particular, since we here are evaluating a more particular right—namely, the right to bear arms for purposes of private self-defense—general historical references to the "right to keep and bear arms" are not always helpful. Depending upon context, early historical sources may mean to refer to a militia-based right—a matter of considerable importance 200 years ago—which has, as the majority points out, "largely faded as a popular concern." Ante, at ___. There is no reason to believe that matters of such little contemporary importance should play a significant role in answering the incorporation question. See Apodaca, 406 U.S., at 410, 92 S.Ct. 1628 (incorporation "inquiry must focus upon the function served" by the right in question in "contemporary society"); Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (incorporation must take into account "the movements of a free society" and "the gradual and empiric process of inclusion and exclusion" (internal quotation marks omitted)); cf. U.S. Const., Art. I, § 910 (prohibiting federal officeholders from accepting a "Title, of any kind whatever, from [a] foreign State"—presumably a matter of considerable importance 200 years ago).

That said, I can find much in the historical record that shows that some Americans in some places at certain times thought it important to keep and bear arms for private self-defense. For instance, the reader will see that many States have constitutional provisions protecting gun possession. But, as far as I can tell, those provisions typically do no more than guarantee that a gun regulation will be a reasonable police power regulation. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L.Rev. 683, 686, 716-717 (2007) (the "courts of every state to consider the question apply a deferential `reasonable regulation' standard") (hereinafter Winkler, Scrutinizing); see also id., at 716-717 (explaining the difference between that standard and ordinary rational-basis review). It is thus altogether unclear whether such provisions would prohibit cities such as Chicago from enacting laws, such as the law before us, banning handguns. See id., at 723. The majority, however, would incorporate a right that is likely inconsistent with Chicago's law; and the majority would almost certainly strike down that law. Cf. Heller, 554 U.S., at ___, 128 S.Ct., at 2818-2822 (striking down the District of Columbia's handgun ban).

Thus, the specific question before us is not whether there are references to the right to bear arms for self-defense throughout this Nation's history—of course there are—or even whether the Court should incorporate a simple constitutional requirement that firearms regulations not unreasonably burden the right to keep and bear arms, but rather whether there is a consensus that so substantial a private self-defense right as the one described in Heller applies to the States. See, e.g., Glucksberg, supra, at 721, 117 S.Ct. 2258 (requiring "a careful description" of the right at issue when deciding whether it is "deeply rooted in this Nation's history and tradition" (internal quotation marks omitted)). On this question, the reader will have to make up his or her own mind about the historical record that I describe in part below. In my view, that *3131 record is insufficient to say that the right to bear arms for private self-defense, as explicated by Heller, is fundamental in the sense relevant to the incorporation inquiry. As the evidence below shows, States and localities have consistently enacted firearms regulations, including regulations similar to those at issue here, throughout our Nation's history. Courts have repeatedly upheld such regulations. And it is, at the very least, possible, and perhaps likely, that incorporation will impose on every, or nearly every, State a different right to bear arms than they currently recognize—a right that threatens to destabilize settled state legal principles. Cf. 554 U.S., at ___, 128 S.Ct., at 2818-2822 (rejecting an "`interest-balancing' approach" similar to that employed by the States).

I thus cannot find a historical consensus with respect to whether the right described by Heller is "fundamental" as our incorporation cases use that term. Nor can I find sufficient historical support for the majority's conclusion that that right is "deeply rooted in this Nation's history and tradition." Instead, I find no more than ambiguity and uncertainty that perhaps even expert historians would find difficult to penetrate. And a historical record that is so ambiguous cannot itself provide an adequate basis for incorporating a private right of self-defense and applying it against the States.

The Eighteenth Century

The opinions in Heller collect much of the relevant 18th-century evidence. See 554 U.S., at ___, 128 S.Ct., at 2790-2805; id., at ___, 128 S.Ct., at 2824-2838 (STEVENS, J., dissenting); id., at ___, 128 S.Ct., at 2848-2850 (BREYER, J., dissenting). In respect to the relevant question— the "deeply rooted nature" of a right to keep and bear arms for purposes of private self-defense—that evidence is inconclusive, particularly when augmented as follows:

First, as I have noted earlier in this opinion, and Justice STEVENS argued in dissent, the history discussed in Heller shows that the Second Amendment was enacted primarily for the purpose of protecting militia-related rights. See supra, at 3122; Heller, supra, at ___, 128 S.Ct., at 2790-2805. Many of the scholars and historians who have written on the subject apparently agree. See supra, at 3120-3122.

Second, historians now tell us that the right to which Blackstone referred, an important link in the Heller majority's historical argument, concerned the right of Parliament (representing the people) to form a militia to oppose a tyrant (the King) threatening to deprive the people of their traditional liberties (which did not include an unregulated right to possess guns). Thus, 18th-century language referring to a "right to keep and bear arms" does not ipso facto refer to a private right of self-defense—certainly not unambiguously so. See English Historians' Brief 3-27; see also supra, at 3120-3122.

Third, scholarly articles indicate that firearms were heavily regulated at the time of the framing—perhaps more heavily regulated than the Court in Heller believed. For example, one scholar writes that "[h]undreds of individual statutes regulated the possession and use of guns in colonial and early national America." Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms, 25 Law & Hist. Rev. 139, 143 (2007). Among these statutes was a ban on the private firing of weapons in Boston, as well as comprehensive restrictions on similar conduct in Philadelphia and New York. See Acts and Laws of Massachusetts, p. 208 (1746); 5 J. Mitchell, & H. Flanders, Statutes at Large of Pennsylvania From 1682 to 1801, pp. *3132 108-109 (1898); 4 Colonial Laws of New York ch. 1233, p. 748 (1894); see also Churchill, supra, at 162-163 (discussing bans on the shooting of guns in Pennsylvania and New York).

Fourth, after the Constitution was adopted, several States continued to regulate firearms possession by, for example, adopting rules that would have prevented the carrying of loaded firearms in the city, Heller, 554 U.S., at ___, 128 S.Ct., at 2848-2850 (BREYER, J., dissenting); see also id., at ___, 128 S.Ct., at 2819-2820. Scholars have thus concluded that the primary Revolutionary era limitation on a State's police power to regulate guns appears to be only that regulations were "aimed at a legitimate public purpose" and "consistent with reason." Cornell, Early American Gun Regulation and the Second Amendment, 25 Law & Hist. Rev. 197, 198 (2007).

The Pre-Civil War Nineteenth Century

I would also augment the majority's account of this period as follows:

First, additional States began to regulate the discharge of firearms in public places. See, e.g., Act of Feb. 17, 1831, § 6, reprinted in 3 Statutes of Ohio and the Northwestern Territory 1740 (S. Chase ed. 1835); Act of Dec. 3, 1825, ch. CCXCII, § 3, 1825 Tenn. Priv. Acts 306.

Second, States began to regulate the possession of concealed weapons, which were both popular and dangerous. See, e.g., C. Cramer, Concealed Weapon Laws of the Early Republic 143-152 (1999) (collecting examples); see also 1837-1838 Tenn. Pub. Acts ch. 137, pp. 200-201 (banning the wearing, sale, or giving of Bowie knives); 1847 Va. Acts ch. 7, § 8, p. 110, ("Any free person who shall habitually carry about his person, hidden from common observation, any pistol, dirk, bowie knife, or weapon of the like kind, from the use of which the death of any person might probably ensue, shall for every offense be punished by [a] fine not exceed fifty dollars").

State courts repeatedly upheld the validity of such laws, finding that, even when the state constitution granted a right to bear arms, the legislature was permitted to, e.g., "abolish" these small, inexpensive, "most dangerous weapons entirely from use," even in self-defense. Day v. State, 37 Tenn. 496, 500 (1857); see also, e.g., State v. Jumel, 13 La. Ann. 399, 400 (1858) (upholding concealed weapon ban because it "prohibited only a particular mode of bearing arms which is found dangerous to the peace of society"); State v. Chandler, 5 La. Ann. 489, 489-490 (1850) (upholding concealed weapon ban and describing the law as "absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons"); State v. Reid, 1 Ala. 612, 616-617 (1840).

The Post-Civil War Nineteenth Century

It is important to read the majority's account with the following considerations in mind:

First, the Court today properly declines to revisit our interpretation of the Privileges or Immunities Clause. See ante, at 3030-3031. The Court's case for incorporation must thus rest on the conclusion that the right to bear arms is "fundamental." But the very evidence that it advances in support of the conclusion that Reconstruction-era Americans strongly supported a private self-defense right shows with equal force that Americans wanted African-American citizens to have the same rights to possess guns as did white citizens. Ante, at 3038-3044. Here, for example is what Congress said when it enacted a Fourteenth Amendment predecessor, the Second Freedman's Bureau Act. It wrote that the statute, in order to secure "the constitutional right to *3133 bear arms ... for all citizens," would assure that each citizen:

"shall have ... full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, [by securing] ... to ... all the citizens of [every] ... State or district without respect to race or color, or previous condition of slavery." § 14, 14 Stat. 176-177 (emphasis added).

This sounds like an antidiscrimination provision. See Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemp. Legal Issues 361, 383-384 (2009) (discussing evidence that the Freedmen's Bureau was focused on discrimination).

Another Fourteenth Amendment predecessor, the Civil Rights Act of 1866, also took aim at discrimination. See § 1, 14 Stat. 27 (citizens of "every race and color, without regard to any previous condition of slavery or involuntary servitude ... shall have the same right [to engage in various activities] and to full and equal benefit of all laws ... as is enjoyed by white citizens"). And, of course, the Fourteenth Amendment itself insists that all States guarantee their citizens the "equal protection of the laws."

There is thus every reason to believe that the fundamental concern of the Reconstruction Congress was the eradication of discrimination, not the provision of a new substantive right to bear arms free from reasonable state police power regulation. See, e.g., Brief for Municipal Respondents 62-69 (discussing congressional record evidence that Reconstruction Congress was concerned about discrimination). Indeed, why would those who wrote the Fourteenth Amendment have wanted to give such a right to Southerners who had so recently waged war against the North, and who continued to disarm and oppress recently freed African-American citizens? Cf. Act of Mar. 2, 1867, § 6, 14 Stat. 487 (disbanding Southern militias because they were, inter alia, disarming the freedmen).

Second, firearms regulation in the later part of the 19th century was common. The majority is correct that the Freedmen's Bureau points to a right to bear arms, and it stands to reason, as the majority points out, that "[i]t would have been nonsensical for Congress to guarantee the... equal benefit of a ... right that does not exist." Ante, at 3043. But the majority points to no evidence that there existed during this period a fundamental right to bear arms for private self-defense immune to the reasonable exercise of the state police power. See Emberton, The Limits of Incorporation: Violence, Gun Rights, and Gun Regulation in the Reconstruction South, 17 Stan. L. & Pol'y Rev. 615, 621-622 (2006) (noting that history shows that "nineteenth-century Americans" were "not opposed to the idea that the state should be able to control the use of firearms").

To the contrary, in the latter half of the 19th century, a number of state constitutions adopted or amended after the Civil War explicitly recognized the legislature's general ability to limit the right to bear arms. See Tex. Const., Art. I, § 13 (1869) (protecting "the right to keep and bear arms," "under such regulations as the legislature may prescribe"); Idaho Const., Art. I, § 11 (1889) ("The people have the right to bear arms ...; but the Legislature shall regulate the exercise of this right by law"); Utah Const., Art. I, § 6 (1896) (same). And numerous other state constitutional provisions adopted during this period explicitly granted the legislature various types of regulatory power over firearms. See Brief for Thirty-Four Professional Historians et al. as Amici Curiae *3134 14-15 (hereinafter Legal Historians' Brief).

Moreover, four States largely banned the possession of all nonmilitary handguns during this period. See 1879 Tenn. Pub. Acts ch. 186, § 1 (prohibiting citizens from carrying "publicly or privately, any ... belt or pocket pistol, revolver, or any kind of pistol, except the army or navy pistol, usually used in warfare, which shall be carried openly in the hand"); 1876 Wyo. Comp. Laws ch. 52, § 1 (forbidding "concealed or ope[n]" bearing of "any fire arm or other deadly weapon, within the limits of any city, town or village"); Ark. Act of Apr. 1, 1881, ch. 96, § 1 (prohibiting the "wear[ing] or carry[ing]" of "any pistol ... except such pistols as are used in the army or navy," except while traveling or at home); Tex. Act of Apr. 12, 1871, ch. 34 (prohibiting the carrying of pistols unless there are "immediate and pressing" reasonable grounds to fear "immediate and pressing" attack or for militia service). Fifteen States banned the concealed carry of pistols and other deadly weapons. See Legal Historians' Brief 16, n. 14. And individual municipalities enacted stringent gun controls, often in response to local conditions—Dodge City, Kansas, for example, joined many western cattle towns in banning the carrying of pistols and other dangerous weapons in response to violence accompanying western cattle drives. See Brief for Municipal Respondents 30 (citing Dodge City, Kan., Ordinance No. 16, § XI (Sept. 22, 1876)); D. Courtwright, The Cowboy Subculture, in Guns in America: A Reader 96 (J. Dizard et al. eds.1999) (discussing how Western cattle towns required cowboys to "check" their guns upon entering town).

Further, much as they had during the period before the Civil War, state courts routinely upheld such restrictions. See, e.g., English v. State, 35 Tex. 473 (1871); Hill v. State, 53 Ga. 472, 475 (1874); Fife v. State, 31 Ark. 455, 461 (1876); State v. Workman, 35 W.Va. 367, 373, 14 S.E. 9 (1891). The Tennessee Supreme Court, in upholding a ban on possession of nonmilitary handguns and certain other weapons, summarized the Reconstruction understanding of the states' police power to regulate firearms:

"Admitting the right of self-defense in its broadest sense, still on sound principle every good citizen is bound to yield his preference as to the means to be used, to the demands of the public good; and where certain weapons are forbidden to be kept or used by the law of the land, in order to the prevention of [sic] crime—a great public end—no man can be permitted to disregard this general end, and demand of the community the right, in order to gratify his whim or willful desire to use a particular weapon in his particular self-defense. The law allows ample means of self-defense, without the use of the weapons which we have held may be rightfully prescribed by this statute. The object being to banish these weapons from the community by an absolute prohibition for the prevention of crime, no man's particular safety, if such case could exist, ought to be allowed to defeat this end." Andrews v. State, 50 Tenn. 165, 188-189 (1871) (emphasis added).

The Twentieth and Twenty-First Centuries

Although the majority does not discuss 20th- or 21st-century evidence concerning the Second Amendment at any length, I think that it is essential to consider the recent history of the right to bear arms for private self-defense when considering whether the right is "fundamental." To that end, many States now provide state constitutional protection for an individual's right to keep and bear arms. See Volokh, *3135 State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 205 (2006) (identifying over 40 States). In determining the importance of this fact, we should keep the following considerations in mind:

First, by the end of the 20th century, in every State and many local communities, highly detailed and complicated regulatory schemes governed (and continue to govern) nearly every aspect of firearm ownership: Who may sell guns and how they must be sold; who may purchase guns and what type of guns may be purchased; how firearms must be stored and where they may be used; and so on. See generally Legal Community Against Violence, Regulating Guns In America (2008), available at http://www.lcav.org/publications-briefs/regulating_guns. asp (all Internet materials as visited June 24, 2010, and available in Clerk of Court's case file) (detailing various arms regulations in every State).

Of particular relevance here, some municipalities ban handguns, even in States that constitutionally protect the right to bear arms. See Chicago, Ill., Municipal Code, § 8-20-050(c) (2009); Oak Park, Ill., Municipal Code, §§ 27-2-1, 27-1-1 (1995); Toledo, Ohio, Municipal Code, ch. 549.25 (2010). Moreover, at least seven States and Puerto Rico ban assault weapons or semiautomatic weapons. See Cal.Penal Code Ann. § 12280(b) (West Supp.2009); Conn. Gen.Stat. Ann. § 53-202c (2007); Haw.Rev.Stat. § 134-8 (1993); Md.Crim. Law Code Ann. § 4-303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, § 131M (West 2006); N.J. Stat. Ann. § 2C:39-5 (West Supp.2010); N.Y. Penal Law Ann. § 265.02(7) (West Supp.2008); 25 Laws P.R. Ann. § 456m (Supp.2006); see also 18 U.S.C. § 922(o) (federal machinegun ban).

Thirteen municipalities do the same. See Albany, N. Y., City Code § 193-16(A) (2005); Aurora, Ill., Code of Ordinances § 29-49(a) (2009); Buffalo, N. Y., City Code § 180-1(F) (2000); Chicago, Ill., Municipal Code § 8-24-025(a) (2010); Cincinnati, Ohio, Municipal Code § 708-37(a) (2008); Cleveland, Ohio, Codified Ordinances § 628.03(a) (2008); Columbus, Ohio, City Code § 2323.31 (2007); Denver, Colo., Municipal Code § 38-130(e) (2008); Morton Grove, Ill., Village Code § 6-2-3(A); N.Y.C. Admin. Code § 10-303.1 (2009); Oak Park, Ill., Village Code § 27-2-1 (2009); Rochester, N. Y., City Code § 47-5(F) (2008); Toledo, Ohio, Municipal Code § 549.23(a). And two States, Maryland and Hawaii, ban assault pistols. See Haw.Rev.Stat. Ann. § 134-8; Md.Crim. Law Code Ann. § 4-303 (Lexis 2002).

Second, as I stated earlier, state courts in States with constitutions that provide gun rights have almost uniformly interpreted those rights as providing protection only against unreasonable regulation of guns. See, e.g., Winkler, Scrutinizing 686 (the "courts of every state to consider" a gun regulation apply the "`reasonable regulation'" approach); State v. McAdams, 714 P.2d 1236, 1238 (Wyo.1986); Robertson v. City & County of Denver, 874 P.2d 325, 328 (Colo.1994).

When determining reasonableness those courts have normally adopted a highly deferential attitude towards legislative determinations. See Winkler, Scrutinizing 723 (identifying only six cases in the 60 years before the article's publication striking down gun control laws: three that banned "the transportation of any firearms for any purpose whatsoever," a single "permitting law," and two as-applied challenges in "unusual circumstances"). Hence, as evidenced by the breadth of existing regulations, States and local governments maintain substantial flexibility to regulate firearms—much as they seemingly have throughout the Nation's history— *3136 even in those States with an arms right in their constitutions.

Although one scholar implies that state courts are less willing to permit total gun prohibitions, see Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L.Rev. 1443, 1458 (2009), I am aware of no instances in the past 50 years in which a state court has struck down as unconstitutional a law banning a particular class of firearms, see Winkler, Scrutinizing 723.

Indeed, state courts have specifically upheld as constitutional (under their state constitutions) firearms regulations that have included handgun bans. See Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 499, 83 Ill.Dec. 308, 470 N.E.2d 266, 273 (1984) (upholding a handgun ban because the arms right is merely a right "to possess some form of weapon suitable for self-defense or recreation"); Cleveland v. Turner, No. 36126, 1977 WL 201393, *5 (Ohio Ct.App., Aug. 4, 1977) (handgun ban "does not absolutely interfere with the right of the people to bear arms, but rather proscribes possession of a specifically defined category of handguns"); State v. Bolin 378 S.C. 96, 99, 662 S.E.2d 38, 39 (2008) (ban on handgun possession by persons under 21 did not infringe arms right because they can "posses[s] other types of guns"). Thus, the majority's decision to incorporate the private self-defense right recognized in Heller threatens to alter state regulatory regimes, at least as they pertain to handguns.

Third, the plurality correctly points out that only a few state courts, a "paucity" of state courts, have specifically upheld handgun bans. Ante, at 3047. But which state courts have struck them down? The absence of supporting information does not help the majority find support. Cf. United States v. Wells, 519 U.S. 482, 496, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (noting that it is "treacherous to find in congressional silence alone the adoption of a controlling rule of law" (internal quotation marks omitted)). Silence does not show or tend to show a consensus that a private self-defense right (strong enough to strike down a handgun ban) is "deeply rooted in this Nation's history and tradition."

* * *

In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self-defense. There has been, and is, no consensus that the right is, or was, "fundamental." No broader constitutional interest or principle supports legal treatment of that right as fundamental. To the contrary, broader constitutional concerns of an institutional nature argue strongly against that treatment.

Moreover, nothing in 18th-, 19th-, 20th-, or 21st-century history shows a consensus that the right to private armed self-defense, as described in Heller, is "deeply rooted in this Nation's history or tradition" or is otherwise "fundamental." Indeed, incorporating the right recognized in Heller may change the law in many of the 50 States. Read in the majority's favor, the historical evidence is at most ambiguous. And, in the absence of any other support for its conclusion, ambiguous history cannot show that the Fourteenth Amendment incorporates a private right of self-defense against the States.

With respect, I dissent.

APPENDIX

Sources Supporting Data in Part II-B

Popular Consensus

Please see the following sources to support the paragraph on popular opinion on pages 9-10:

*3137 • Briefs filed in this case that argue against incorporation include: Brief for United States Conference of Mayors as Amicus Curiae 1, 17-33 (organization representing "all United States cities with populations of 30,000 or more"); Brief for American Cities et al. as Amici Curiae 1-3 (brief filed on behalf of many cities, e.g., Philadelphia, Seattle, San Francisco, Oakland, Cleveland); Brief for Representative Carolyn McCarthy et al. as Amici Curiae 5-10; Brief for State of Illinois et al. as Amici Curiae 7-35.

• Wilkinson, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L.Rev. 253, 301 (2009) (discussing divided public opinion over the correct level of gun control).

Data on Gun Violence

Please see the following sources to support the sentences concerning gun violence on page 13:

• Dept. of Justice, Bureau of Justice Statistics, M. Zawitz & K. Strom, Firearm Injury and Death from Crime, 1993-1997, p. 2 (Oct.2000) (over 60,000 deaths and injuries caused by firearms each year).

• Campbell, et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 Am. J. of Pub. Health 1089, 1092 (2003) (noting that an abusive partner's access to a firearm increases the risk of homicide eightfold for women in physically abusive relationship).

• American Academy of Pediatrics, Firearm-Related Injuries Affecting the Pediatric Population, 105 Pediatrics 888 (2000) (noting that in 1997 "firearm-related deaths accounted for 22.5% of all injury deaths" for individuals between 1 and 19).

• Dept. of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed & Assaulted, 2006, (Table) 27 (noting that firearms killed 93% of the 562 law enforcement officers feloniously killed in the line of duty between 1997 and 2006), online at http://www.fbi.gov/ucr/killed/2006/ table27.html.

• Dept. of Justice, Bureau of Justice Statistics, D. Duhart, Urban, Suburban, and Rural Victimization, 1993-1998, pp. 1, 9 (Oct.2000) (those who live in urban areas particularly at risk of firearm violence).

• Wintemute, The Future of Firearm Violence Prevention, 281 JAMA 475 (1999) ("half of all homicides occurred in 63 cities with 16% of the nation's population").

Data on the Effectiveness of Regulation

Please see the following sources to support the sentences concerning the effectiveness of regulation on page 13:

• See Brief for Professors of Criminal Justice as Amici Curiae 13 (noting that Chicago's handgun ban saved several hundred lives, perhaps close to 1,000, since it was enacted in 1983).

• Brief for Association of Prosecuting Attorneys et al. as Amici Curiae 13-16, 20 (arguing that stringent gun regulations "can help protect police officers operating on the front lines against gun violence," and have reduced homicide rates in Washington, D. C., and Baltimore).

• Brief for United States Conference of Mayors as Amici Curiae 4-13 (arguing that gun regulations have helped to lower New York's crime and homicide rates).

*3138 Data on Handguns in the Home

Please see the following sources referenced in the sentences discussing studies concerning handguns in the home on pages 13-14:

• Brief for Organizations Committed to Protecting the Public's Health, Safety, and Well-Being as Amici Curiae in Support of Respondents 13-16 (discussing studies that show handgun ownership in the home is associated with increased risk of homicide).

• Wiebe, Firearms in U.S. Homes as a Risk Factor for Unintentional Gunshot Fatality, 35 Accident Analysis and Prevention 711, 713-714 (2003) (showing that those who die in firearms accidents are nearly four times more likely than average to have a gun in their home).

• Kellerman et al., Suicide in the Home in Relation to Gun Ownership, 327 New England J. Medicine 467, 470 (1992) (demonstrating that "homes with one or more handguns were associated with a risk of suicide almost twice as high as that in homes containing only long guns").

Data on Regional Views and Conditions

Please see the following sources referenced in the section on the diversity of regional views and conditions on page 16:

• Okoro, et al., Prevalence of Household Firearms and Firearm-Storage Practices in the 50 States and the District of Columbia: Findings From the Behavioral Risk Factor Surveillance System, 2002, 116 Pediatrics 370, 372 (2005) (presenting data on firearm ownership by State).

• Heller, 554 U.S., at ___, 128 S.Ct., at 2856-2857 (BREYER, J., dissenting) (discussing various sources showing that gun violence varies by state, including Wintemute, The Future of Firearm Violence Prevention, 281 JAMA 475 (1999)).

• Heller, supra, at ___, 128 S.Ct., at 2856-2857 (BREYER, J., dissenting) (citing Branas, Nance, Elliott, Richmond, & Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J. Public Health 1750, 1752 (2004)) (discussing the fact that urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents).

• Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States, tbl. 6 (noting that murder rate is 40 times higher in New Orleans than it is in Lincoln, Nebraska).

Paul Poe et al., Appellants, v. Abraham Ullman, State's Attorney. Jane Doe, Appellant, v. Abraham Ullman, State's Attorney. C. Lee Buxton, Appellant, v. Abraham ULLMAN, State's Attorney.

Argued March 1, 2, 1961.

Decided June 19, 1961.

Rehearing Denied Oct. 9, 1961.

See 82 S.Ct. 21, 22.

Mr. Fowler V. Harper, New Haven, Conn., for appellants in both cases.

Mrs. Harriet Pilpel, New York City, for Planned Parenthood Federation of America, Inc., as amicus curiae, in both cases.

Mr. Raymond J. Cannon, Hartford, Conn., for appellee in both cases.

*498Mr. Justice FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice WHITTAKER join.

These appeals challenge the constitutionality, under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse.

No. 60 combines two actions brought in a Connecticut Superior Court for declaratory relief. The complaint in the first alleges that the plaintiffs, Paul and Pauline Poe,1 are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic, although the*499 underlying 'mechanism' is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely disturbing to the physical and mental health of both husband and wife. Plaintiffs know that it is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these devices is indicated as the best and safest preventive measure necessary for the protection of plaintiffs' health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney intends to prosecute offenses against the State's laws, and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn.Gen.Stat.Rev.1958, §§ 53—32 and 54—196.2*500 Alleging irreparable injury and a substantial uncertainty of legal relations (a local procedural requisite for a declaration), plaintiffs ask a declaratory judgment that §§ 53—32 and 54—196 are unconstitutional, in that they deprive the plaintiffs of life and liberty without due process of law.

The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children; Mrs. Doe recently underwent a pregnancy which induced in her a critical physical illness—two weeks' unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought, are similar to those in the case of Mr. and Mrs. Poe.

In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks that the Connecticut statutes prohibiting his giving of contraceptive advice to Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property without due process.

In all three actions, demurrers were advanced, inter alia, on the ground that the statutes attacked had been previously construed and sustained by the Supreme Court of Errors of Connecticut, and thus there did not exist the uncertainty of legal relations requisite to maintain suits for declaratory judgment. While the Connecticut Supreme Court of Errors in sustaining the demurrers referred to this local procedural ground, relying on State v. Nelson, 126 Conn. 412, 11 A.2d 856, and Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582, appeal dismissed 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603, we cannot say that its decision rested on it. 147 Conn.

*50148, 156 A.2d 508. We noted probable jurisdiction. 362 U.S. 987, 80 S.Ct. 1077, 4 L.Ed.2d 1020.

Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations are merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims. See United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 88, 67 S.Ct. 556, 564, 91 L.Ed. 754. But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722. Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.

The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. Conn.Acts 1879, c. 78. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A.2d 856. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State*502 moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process.3 The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores.4 Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would mere quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage—the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. 'Deeply embedded traditional ways of carrying out state policy * * *'—or not carrying it out 'are often tougher and truer law than the dead words of the written text.' Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254.

The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution, see Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional ques*503tions. The policy reflected in numerous cases and over a long period was thus summarized in the oft-quoted statement of Mr. Justice Brandeis: 'The Court (has) developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.' Ashwander v. Tennessee alley Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688 (concurring opinion). In part the rules summarized in the Ashwander opinion have derived from the historically defined, limited nature and function of courts and from the recognition that, within the framework of our adversary system, the adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity. See Little v. Bowers, 134 U.S. 547, 558, 10 S.Ct. 620, 623, 33 L.Ed. 1016; People of State of California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747; United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476. In part they derive from the fundamental federal and tripartite character of our National Government and from the role—restricted by its very responsibility—of the federal courts, and particularly this Court, within that structure. See the Note to Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488—489, 43 S.Ct. 597, 601, 67 L.Ed. 1078; Watson v. Buck, 313 U.S. 387, 400—403, 61 S.Ct. 962, 966—968, 85 L.Ed. 1416; Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725.

These considerations press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution. 'The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.' Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 163, 94 L.Ed. 144. See also Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. The various doctrines of 'stand*504ing,'5 'ripeness,' 6 and 'mootness,'7 which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations—each having its own 'varied application'8—of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89—90, 67 S.Ct. 556, 564—565, 91 L.Ed. 754. 'This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here.' State of Georgia v. Stanton, 6 Wall. 50, 75, 18 L.Ed. 721, approvingly quoting Mr. Justice Thompson, dissenting, in Cherokee Nation v. State of Georgia, 5 Pet. 1, 75, 8 L.Ed. 25; also quoted in State of New Jersey v. Sargent, 269 U.S. 328, 331, 46 S.Ct. 122, 70 L.Ed. 289. 'The party who invokes the power (to annul legislation on grounds*505 of its unconstitutionality) must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement * * *.' Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.9

This principle was given early application and has been recurringly enforced in the Court's refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims. See, e.g., Cleveland v. Chamberlain, 1 Black 419, 17 L.Ed. 93; Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379. Such cases may not be 'collusive' in the derogatory sense of Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067—in the sense of merely colorable disputes got up to secure an advantageous ruling from the Court. See South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 301, 12 S.Ct. 921, 36 L.Ed. 712. The Court has found unfit for adjudication any cause that 'is not in any real sense adversary,' that 'does not assume the 'honest and actual antagonistic assertion of rights' to be adjudicated—a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court.' United States v. Johnson, 319 U.S. 302, 305, 63 S.Ct. 1075, 1076, 87 L.Ed. 1413. The requirement for adversity was classically expounded in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 344—345, 12 S.Ct. 400, 402, 36 L.Ed. 176:

'* * * The theory upon which, apparently, this suit was brought is that parties have an appeal from the*506 legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'

What was said in the Wellman case found ready application in proceedings brought under modern declaratory judgment procedures. For just as the declaratory judgment device does not 'purport to alter the character of the controversies which are the subject of the judicial power under the Constitution,' United States v. State of West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 793, 79 L.Ed. 1546, it does not permit litigants to invoke the power of this Court to obtain constitutional rulings in advance of necessity. Electric Bond & Share Co. v. Securities and Exchange Comm., 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936. The Court has been on the alert against use of the declaratory judgment device for avoiding the rigorous insistence on exigent adversity as a condition for evoking Court adjudication. This is as true of state court suits for declaratory judgments as of federal. By exercising their jurisdiction, state courts cannot determine the jurisdiction to be exercised by this Court. Tyler*507 v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475. Although we have held that a state declaratory-judgment suit may constitute a case or controversy within our appellate jurisdiction, it is to be reviewed here only 'so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy, which is finally determined by the judgment below.' Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 348, 77 L.Ed. 730. It was with respect to a state-originating declaratory judgment proceeding that we said, in Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725, that 'The extent to which the declaratory judgment procedure may be used in the federal courts to control state action lies in the sound discretion of the Court. * * *' Indeed, we have recognized, in such cases, that '* * * the discretionary element characteristic of declaratory jurisdiction, and imported perhaps from equity jurisdiction and practice without the remedial phase, offers a convenient instrument for making * * * effective * * *.' the policy against premature constitutional decision. Rescue Army v. Municipal Court, 331 U.S. 549, 573, note 41, 67 S.Ct. 1409, 1422, 91 L.Ed. 1666.

Insofar as appellants seek to justify the exercise of our declaratory power by the threat of prosecution, facts which they can no more negative by complaint and demurrer than they could by stipulation preclude our determining their appeals on the merits. Cf. Bartemeyer v. State of Iowa, 18 Wall. 129, 134—135, 21 L.Ed. 929. It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting. See Ex parte La Prade, 289 U.S. 444, 458, 53 S.Ct. 682, 77 L.Ed. 1311. If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. C.I.O.

*508v. McAdory, 325 U.S. 472, 475, 65 S.Ct. 1395, 1397, 89 L.Ed. 1741. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows. To find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution, would be to close our eyes to reality.

Nor does the allegation by the Poes and Doe that they are unable to obtain information concerning contraceptive devices from Dr. Buxto, 'for the sole reason that the delivery and use of such information and advice may or will be claimed by the defendant State's Attorney to constitute offenses,' disclose a necessity for present constitutional decision. It is true that this Court has several times passed upon criminal statutes challenged by persons who claimed that the effects of the statutes were to deter others from maintaining profitable or advantageous relations with the complainants. See, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. But in these cases the deterrent effect complained of was one which was grounded in a realistic fear of prosecution. We cannot agree that if Dr. Buxton's compliance with these statutes is uncoerced by the risk of their enforcement, his patients are entitled to a declaratory judgment concerning the statutes' validity. And, with due regard to Dr. Buxton's standing as a physician and to his personal sensitiveness, we cannot accept, as the basis of constitutional adjudication, other than as chimerical the fear of enforcement of provisions that have during so many years gone uniformly and without exception unenforced.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures,*509 including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought. Both these factors justify withholding adjudication of the constitutional issue raised under the circumstances and in the manner in which they are now before the Court.

Dismissed.

Mr. Justice BLACK dissents because he believes that the constitutional questions should be reached and decided.

1

Plaintiffs in the two cases composing No. 60 sue under fictitious names. The Supreme Court of Errors of Connecticut approved this procedure in the special circumstances of the cases.

2

As a matter of specific legislation, Connecticut outlaws only the use of contraceptive materials. Conn.Gen.Stat.Rev.1958, § 53—32 provides:

'Use of drugs or instruments to prevent conception. Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.'

There are no substantive provisions dealing with the sale or distribution of such devices, nor with the giving of information concerning their use. These activities are deemed to be involved in law solely because of the general criminal accessory enactment of Connecticut. This is Conn.Gen.Stat.Rev.1958, § 54—196:

'Accessories. Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.'

3

The assumption of prosecution of spouses for use of contraceptives is not only inherently bizarre, as was admitted by counsel, but is underscored in its implausibility by the disability of spouses, under Connecticut law, from being compelled to testify against one another.

4

It is also worthy of note that the Supreme Court of Errors has held that contraceptive devices could not be seized and destroyed as nuisances under the State's seizure statutes. See State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 803, decided on the same day as the Nelson case.

5

See, e.g., Braxton County Court v. State of West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499; Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Cf. Owings v. Norwood's Lessee, 5 Cranch 344, 3 L.Ed. 120.

6

See, e.g. State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650. Cf. Coffman v. Breeze Corporations, 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264.

7

See, e.g., San Mateo County v. Southern Pacific R. Co., 116 U.S. 138, 6 S.Ct. 317, 29 L.Ed. 589; Singer Mfg. Co. v. Wright, 141 U.S. 696, 12 S.Ct. 103, 35 L.Ed. 906; Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293; Kimball v. Kimball, 174 U.S. 158, 19 S.Ct. 639, 43 L.Ed. 932; State of Tennessee v. Condon, 189 U.S. 64, 23 S.Ct. 579, 47 L.Ed. 709; American Book Co. v. State of Kansas, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613; Jones v. Montague, 194 U.S. 147, 24 S.Ct. 611, 48 L.Ed. 913; Security Mutual Life Ins. Co. v. Prewitt, 200 U.S. 446, 26 S.Ct. 314, 50 L.Ed. 545; Richardson v. McChesney, 218 U.S. 487, 31 S.Ct. 43, 54 L.Ed. 1121; Berry v. Davis, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441; Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814.

8

Mr. Justice Brandeis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 347, 56 S.Ct. 466, 480, 483, 80 L.Ed. 688.

9

The Mellon cases involved what is technically designated as the problem of 'standing,' but the concern which they exemplify that constitutional issues be determined only at the suit of a person immediately injured has equal application here. It makes little sense to insist that only the parties themselves whom legislation immediately threatens may sue to strike it down and, at the same time, permit such suit when there is not even a remote likelihood that the threat to them will in fact materialize.

Mr. Justice BRENNAN, concurring in the judgment.

I agree that this appeal must be dismissed for failure to present a real and substantial controversy which unequivocally calls for adjudication of the rights claimed in advance of any attempt by the State to curtail them by criminal prosecution. I am not convinced, on this skimpy record, that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged upon us when, if ever, that real controversy flares up again. Until it does, or until the State makes a definite and concrete threat to enforce these laws against individual married couples—a threat which it has never made in the past except under the provocation of litigation—this Court may not be compelled to exercise its most delicate power of constitutional adjudication.

Mr. Justice DOUGLAS, dissenting.

I.

These cases are dismissed because a majority of the members of this Court conclude, for varying reasons, that*510 this controversy does not present a justiciable question. That conclusion is too transparent to require an extended reply. The device of the declaratory judgment is an honored one. Its use in the federal system is restricted to 'cases' or 'controversies' within the meaning of Article III. The question must be 'appropriate for judicial determination,' not hypothetical, abstract, academic or moot. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 464, 81 L.Ed. 617. It must touch 'the legal relations of parties having adverse legal interests.' Id., 300 U.S. at pages 240—241, 57 S.Ct. at page 464. It must be 'real and substantial' and admit of 'specific relief through a decree of a conclusive character.' Id., 300 U.S. at page 241, 57 S.Ct. at page 464. The fact that damages are not awarded or an injunction does not issue, the fact that there are no allegations of irreparable injury are irrelevant. Id., 300 U.S. at page 241, 57 S.Ct. at page 464. This is hornbook law. The need for this remedy in the federal field was summarized in a Senate Report as follows:

'* * * it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity.' S.Rep. No. 1005, 73d Cong., 2d Sess., pp. 2—3.

If there is a case where the need for this remedy in the shadow of a criminal prosecution is shown, it is this one, as Mr. Justice HARLAN demonstrates. Plaintiffs in No. 60 are two sets of husband and wife. One wife is pathetically ill, having delivered a stillborn fetus. If she becomes pregnant again, her life will be gravely jeopardized. This couple have been unable to get medical advice concerning the 'best and safest' means to avoid pregnancy from their physician, plaintiff in No. 61, because if he gave it he would commit a crime. The use of contraceptive devices would also constitute a crime. And it is alleged—and admitted by the State—that the State's Attorney intends to enforce the law by prosecuting offenses under the laws.

*511A public clinic dispensing birth-control information has indeed been closed by the State. Doctors and a nurse working in that clinic were arrested by the police and charged with advising married women on the use of contraceptives. That litigation produced State v. Nelson, 126 Conn. 412, 11 A.2d 856, which upheld these statutes. That same police raid on the clinic resulted in the seizure of a quantity of the clinic's contraception literature and medical equipment and supplies. The legality of that seizure was in question in State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863.

The Court refers to the Nelson prosecution as a 'test case' and implies that it had little impact. Yet its impact was described differently by a contemporary observer who concluded his comment with this sentence: 'This serious setback to the birth control movement (the Nelson case) led to the closing of all the clinics in the state, just as they had been previously closed in the state of Massachusetts.'1 At oral argument, counsel for appellants confirmed that the clinics are still closed. In response to a question from the bench, he affirmed that 'no public or private clinic' has dared give birth-control advice since the decision in the Nelson case.2

These, then, are the circumstances in which the Court feels that it can, contrary to every principle of American or English common law,3 go outside the record to con*512clude that there exists a 'tacit agreement' that these statutes will not be enforced. No lawyer, I think, would advise his clients to rely on that 'tacit agreement.' No police official, I think, would feel himself bound by that 'tacit agreement.' After our national experience during the prohibition era, it would be absurd to pretend that all criminal statutes are adequately enforced. But that does not mean that bootlegging was the less a crime. Cf. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551. In fact, an arbitrary administrative pattern of non-enforcement may increase the hardships of those subject to the law. See J. Goldstein, Police Discretion Not to Invoke the Criminal Process, 69 Yale L.J. 543.

When the Court goes outside the record to determine that Connecticut has adopted 'The undeviating policy of nullification * * * of its anti-contraceptive laws,' it selects a particularly poor case in which to exercise such a novel power. This is not a law which is a dead letter. Twice since 1940, Connecticut has reenacted these laws as part of general statutory revisions. Consistently, bills to remove the statutes from the books have been rejected by the legislature. In short, the statutes—far from being the accidental left-overs of another era—are the center of a continuing controversy in the State. See, e.g., The New Republic, May 19, 1947, p. 8.

Again, the Court relies on the inability of counsel to show any attempts, other than the Nelson case, 'to enforce the prohibition of distribution or use of contraceptive devices by criminal process.' Yet, on oral argument, counsel for the appellee stated on his own knowl*513edge that several proprietors had been prosecuted in the 'minor police courts of Connecticut' after they had been 'picked up' for selling contraceptives. The enforcement of criminal laws in minor courts has just as much impact as in those cases where appellate courts are resorted to. The need of the protection of constitutional guarantees, and the right to them, are not less because the matter is small or the court lowly. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. Nor is the need lacking because the dispensing of birth-control information is by a single doctor rather than by birth-control clinics. The nature of the controversy would not be changed one iota had a dozen doctors, representing a dozen birth-control clinics, sued for remedial relief.

What are these people—doctor and patients—to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment and our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor seek a dignified, discrete, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined. See Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072. They are entitled to an answer to their predicament here and now.

II.

The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion. The leading cases on freedom of expression are generally framed*514 with reference to public debate and discourse. But as Chafee said, 'the First Amendment and other parts of the law erect a fence inside which men can talk. The law-makers, legislators and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law.' The Blessings of Liberty (1956), p. 108.

The teacher (Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311) as well as the public speaker (Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430) is included. The actor on stage or screen, the artist whose creation is in oil or clay or marble, the poet whose reading public may be practically nonexistent, the musician and his musical scores, the counselor whether priest, parent or teacher no matter how small his audience—these too are beneficiaries of freedom of expression. The remark by President James A. Garfield that his ideal of a college was al og in the woods with a student at one end and Mark Hopkins at another (9 Dict.Am Biog., p. 216) puts the present problem in proper First Amendment dimensions. Of course a physician can talk freely and fully with his patient without threat of retaliation by the State. The contrary thought—the one endorsed sub silentio by the courts below—has the cast of regimentation about it, a cast at war with the philosophy and presuppositions of this free society.

We should say with Kant that 'It is absurd to expect to be enlightened by Reason, and at the same time to prescribe to her what side of the question she must adopt.'4 Leveling the discourse of medical men to the morality of a particular community is a deadening influence. Mill spoke of the pressures of intolerant groups that produce 'either mere conformers to commonplace, or time-servers for truth.'5 We witness in this case a sealing of the lips of a doctor because he desires to observe*515 the law, obnoxious as the law may be. The State has no power to put any sanctions of any kind on him for any views or beliefs that he has or for any advice he renders. These are his professional domains into which the State may not intrude. The chronicles are filled with sad attempts of government to stomp out ideas, to ban thoughts because they are heretical or obnoxious. As Mill stated, 'Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion.'6 When that happens society suffers. Freedom working underground, freedom bootlegged around the law is freedom crippled. A society that tells its doctors under pain of criminal penalty what they may not tell their patients is not a free society. Only free exchange of views and information is consistent with 'a civilization of the dialogue,' to borrow a phrase from Dr. Robert M. Hutchins. See Wieman v. Updegraff, 344 U.S. 183, 197, 73 S.Ct. 215, 222, 97 L.Ed. 216 (concurring opinion).

III.

I am also clear that this Connecticut law as applied to this married couple deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment.

The first eight Amendments to the Constitution have been made applicable to the States only in part. My view has been that when the Fourteenth Amendment was adopted, its Due Process Clause incorporated all of those Amendments. See Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion). Although the history of the Fourteenth Amendment may not be conclusive, the words 'due process' acquired specific meaning from Anglo-American experience.7 As Mr. Justice BRENNAN re*516cently stated, 'The Bill of Rights is the primary source of expressed information as to what is meant by constitutional liberty. The safeguards enshrined in it are deeply etched in the foundations of America's freedoms.' The Bill of Rights and the States (1961), 36 N.Y.U.L.Rev. 761, 776. When the Framers wrote the Bill of Rights they enshrined in the form of constitutional guarantees those rights—in part substantive, in part procedural which experience indicated were indispensable to a free society. Some would disagree as to their importance; the debate concerning them did indeed start before their adoption and has continued to this day. Yet the constitutional conception of 'due process' must, in my view, include them all until and unless there are amendments that remove them. That has indeed been the view of a full court of nine Justices, though the members who make up that court unfortunately did not sit at the same time.8

Though I believe that 'due process' as used in the Fourteenth Amendment includes all of the first eight Amendments, I do not think it is restricted and confined to them. We recently held that the undefined 'liberty' in the Due Process Clause of the Fifth Amendment includes freedom to travel. Kent v. Dulles, 357 U.S. 116, 125-127, 78 S.Ct. 1113, 1118—1119, 2 L.Ed.2d 1204. Cf. Edwards v. People of State of California, 314 U.S. 160,*517 177, 178, 62 S.Ct. 164, 169, 86 L.Ed. 119 (concurring opinion). The right 'to marry, establish a home and bring up children' was said in Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, to come within the 'liberty' of the person protected by the Due Process Clause of the Fourteenth Amendment. As I indicated in my dissent in Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068, 'liberty' within the purview of the Fifth Amendment includes the right of 'privacy,' a right I thought infringed in that case because a member of a 'captive audience' was forced to listen to a government-sponsored radio program. 'Liberty' is a conception that sometimes gains content from the emanations of other specific guarantees (N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488) or from experience with the requirements of a free society.

For years the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system. Mr. Justice Holmes, dissenting, rightly said that 'a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.' Lochner v. State of New York, 198 U.S. 45, 75—76, 25 S.Ct. 539, 547, 49 L.Ed. 937.

The error of the old Court, as I see it, was not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. Social legislation dealing with business and economic matters touches no particularized prohibition of the Constitution, unless it be*518 the provision of the Fifth Amendment that private property should not be taken for public use without just compensation. If it is free of the latter guarantee, it has a wide scope for application. Soem go so far as to suggest that whatever the majority in the legislature says goes (cf. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 64, 33 S.Ct. 667, 672, 57 L.Ed. 1063), that there is no other standard of constitutionality. That reduces the legislative power to sheer voting strength and the judicial function to a matter of statistics. As Robert M. Hutchins has said, 'It is obviously impossible to raise questions of freedom and justice if the sole duty of the court is to decide whether the case at bar falls within the scope of the duly issued command of a duly constituted sovereign.' Two Faces of Federalism (1960), p. 18. While the legislative judgment on economic and business matters is 'well-nigh conclusive' (Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27), it is not beyond judicial inquiry. Cf. United States v. Oregon, 366 U.S. 643, 649, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (dissenting opinion).

The regime of a free society needs room for vast experimentation. Crises, emergencies, experience at the individual and community levels produce new insights; problems emerge in new dimensions; needs, once never imagined, appear. To stop experimentation and the testing of new decrees and controls is to deprive society of a needed versatility. Yet to say that a legislature may do anything not within a specific guarantee of the Constitution may be as crippling to a free society as to allow it to override specific guarantees so long as what it does fails to shock the sensibilities of a majority of the Court.9*519 The present legislation is an excellent example. If a State banned completely the sale of contraceptives in drug stores, the case would be quite different. It might seem to some or to all judges an unreasonable restriction. Yet it might not be irrational to conclude that a better way of dispensing those articles is through physicians. The same might be said of a state law banning the manufacture of contraceptives. Health, religious, and moral arguments might be marshalled pro and con. Yet it is not for judges to weigh the evidence. Where either the sale or the manufacture is put under regulation, the strictures are on business and commercial dealings that have had a long history with the police power of the States.

The present law, however, deals not with sale, not with manufacture, but with use. It provides:

'Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.' Conn.Gen.Stat.1958, § 53—32.

The regulation as applied in this case touches the relationship between man and wife. It reaches into the intimacies of the marriage relationship. If we imagine a regime of full enforcement of the law in the manner of*520 an Anthony Comstock,10 we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.11 It is said that this is not that case. And so it is not. But when the State makes 'use' a crime and applies the criminal sanction to man*521 and wife, the State has entered the innermost sanctum of the home. If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wie .

That is an invasion of the privacy that is implicit in a free society. A noted theologian who conceives of the use of a contraceptive as a 'sin' nonetheless admits that a 'use' statute such as this enters a forbidden domain.

'* * * the Connecticut statute confuses the moral and legal, in that it transposes without further ado a private sin into a public crime. The criminal act here is the private use of contraceptives. The real area where the coercions of law might, and ought to, be applied, at least to control an evil namely, the contraceptive industry—is quite overlooked. As it stands, the statute is, of course, unenforceable without police invasion of the bedroom, and is therefore indefensible as a piece of legal draughtsmanship.' Murray, We Hold These Truths (1960), pp. 157—158.

This notion of privacy is not drawn from the blue.12 It emanates from the totality of the constitutional scheme under which we live.13

'One of the earmarks of the totalitarian understanding of society is that it seeks to make all*522 subcommunities—family, school, business, press, church completely subject to control by the State. The State then is not one vital institution among others: a policeman, a referee, and a source of initiative for the common good. Instead, it seeks to be coextensive with family and school, press, business community, and the Church, so that all of these component interest groups are, in principle, reduced to organs and agencies of the State. In a democratic political order, this megatherian concept is expressly rejected as out of accord with the democratic understanding of social good, and with the actual make-up of the human community.'14

Can there be any doubt that a Bill of Rights that in time of peace bars soldiers from being quartered in a home 'without the consent of the Owner' 15 should also bar the police from investigating the intimacies of the marriage relation? The idea of allowing the State that leeway is congenial only to a totalitarian regime.

I dissent from a dismissal of these cases and our refusal to strike down this law.

1

Himes, A Decade of Progress in Birth Control, 212 Annals Am.Acad.Pol. & Soc.Sci. 88, 94 (1940).

2

It may be, as some suggest, that these bizarre laws are kept on the books solely to insure that traffic in contraceptives will be furtive, or will be limited to those who, by the accident of their education, travels, or wealth, need not rely on local public clinics for instruction and supply. Yet these laws—as the decision below shows—are not limited to such situations.

3

'On the continent there was some speculation during the middle ages as to whether a law could become inoperative through long-continued desuetude. In England, however, the idea of prescription and h e acquisition or loss of rights merely by the lapse of a particular length of time found little favour. * * * There was consequently no room for any theory that statutes might become obsolete.' Plucknett, A Concise History of the Common Law (1956), pp. 337—338.

4

The Critique of Pure Reason, 42 Great Books, p. 221.

On Liberty of Thought and Discussion, 43 Great Books, p. 282.

6

Ibid.

7

See Konvitz, Fundamental Liberties of a Free People (1957), pp. 37—39; Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869, 904 et seq. (9 48); Holmes, The Fourteenth Amendment and the Bill of Rights, 7 S.C.L.Q.Rev. 596 (1955).

And see Mr. Justice Rutledge (concurring) in In re Oliver, 333 U.S. 257, 280—281, 68 S.Ct. 499, 511, 92 L.Ed. 682.

8

I start with Justices Bradley, Swayne, Field, Clifford and Harlan. To this number, Mr. Justice Brewer can probably be joined on the basis of his agreement 'in the main' with Mr. Justice Harlan in O'Neil v. State of Vermont, 144 U.S. 323, 371, 12 S.Ct. 693, 711, 36 L.Ed. 450. See the Appendix to Mr. Justice Black's dissent in Adamson v. People of State of California, supra, 332 U.S. 120—123, 67 S.Ct. 1709—1711. To these I add Mr. Justice Black, Mr. Justice Murphy, Mr. Justice Rutledge and myself (Adamson v. People of State of California, supra, 332 U.S. 68, 123, 67 S.Ct. 1684, 1683).

9

'The due process clause is said to exact from the states all that is 'implicit in the concept of ordered liberty.' It is further said that the concept is a living one, that it guarantees basic rights, not because they have become petrified as of any one time, but because due process follows the advancing standards of a free society as to what is deemed reasonable and right. It is to be applied, according to this view, to facts and circumstances as they arise, the cases falling on one side of the line or the other as a majority of nine justices appraise conduct as either implicit in the concept of ordered liberty or as lying without the confines of that vague concept. Of course, in this view, the due process clause of the Fifth Amendment, which confessedly must be construed like that of the Fourteenth, may be repetitious of many of the other guaranties of the first eight amendments and may render many of their provisions superfluous.' Roberts, The Court and the Constitution (1951), p. 80.

10

Anthony Comstock (1844—1915)—the Congregationalist who inspired the foundation of the New York Society for the Suppression of Vice in 1873 and the Watch and Ward Society of Boston in 1876 and who inspired George Bernard Shaw to use the opprobrious word 'comstockery' in Mrs. Warren's Profession—was responsible for the passage in 1879 of this Connecticut law.

'Anthony Comstock had moral earnestness and it can't be faked. His concern was with Puritan theology rather than Puritan ethics. Righteousness seemed to him less important than salvation and consequently tricks which seemed shabby to enutrals left him without shame. A man who fights for the safety of his immortal soul can hardly be expected to live up to the best Queensberry traditions in the clinches. To grant the major premises of Comstock's religious and social philosophy is to acquit him of any lack of logic. Obscenity was to Anthony poison to soul and body, and anything remotely touching upon sex was to his mind obscene. He seems to have believed implicitly in medical theories which have since his time been discarded. Even in his day beliefs were changing, but Comstock was loyal to the old-line ideas. It was his notion that idiocy, epilepsy and locomotor-ataxia were among the ailments for which auto-eroticism was responsible. Since death and damnation might be, according to his belief, the portion of the girl or boy who read a ribald story, it is easy to understand why he was so impatient with those who advanced the claims of art. Even those who love beauty would hardly be prepared to burn in hell forever in its service. Comstock's decision was even easier, for he did not know, understand or care anything about beauty.' Broun and Leech, Anthony Comstock (1927), pp. 265—266.

11

Those warrants would, I think, go beyond anything so far known in our law. The law has long known the writ de ventre inspiciendo authorizing matrons to inspect the body of a woman to determine if she is pregnant. This writ was issued to determine before a hanging whether a convicted famale was pregnant or to ascertain whether rightful succession of property was to be defeated by assertion of a suppositions heir. See 1 Blackstone Commentaries (Jones ed. 1915), p. 651.

12

The right 'to be let alone' had many common-law overtones. See Cooley, Torts (2d ed. 1888), p. 29; Warren and Brandeis, Right To Privacy, 4 Harv.L.Rev. 192. Cf. Ohio Rev.Code, § 2905.34, which makes criminal knowing 'possession' of 'a drug, medicine, article, or thing intended for the prevention of conception,' doctors and druggists being excepted. § 2905.37.

13

Mr. Justice Murphy dissenting in Adamson v. People of State of California, 332 U.S. 46, 124, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903, said:

'I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.'

14

Calhoun, Democracy and Natural Law, 5 Nat.Law Forum, 31, 36 (1960).

15

The Third Amendment provides:

'No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.'

Mr. Justice HARLAN, dissenting.

I am compelled, with all respect, to dissent from the dismissal of these appeals. In my view the course which the Court has taken does violence to established concepts*523 of 'justiciability,' and unjustifiably leaves these appellants under the threat of unconstitutional prosecution. Regrettably, an adequate exposition of my views calls for a dissenting opinion of unusual length.

Between them these suits seek declaratory relief against the threatened enforcement of Connecticut's antibirth-control laws making criminal the use of contraceptives, insofar as such laws relate to the use of contraceptives by married persons and the giving of advice to married persons in their use.1 The appellants, a married couple, a married woman, and a doctor, ask that it be adjudged, contrary to what the Connecticut courts have held, that such laws, as threatened to be applied to them in circumstances described in the opinion announcing the judgment of the Court (ante, 367 U.S. at pages 498—500, 81 S.Ct. at pages 1753—1754), violate the Fourteenth Amendment, in that they deprive appellants of life, liberty, or property without due process.

The plurality opinion of the Court gives, as the basis for dismissing the appeals, the reason that, as to the two married appellants, the lack of demonstrated enforcement of the Connecticut statute bespeaks an absence of exigent adversity which is posited as the condition for evoking adjudication from us, and, as to the doctor, that his compliance with the state statute is uncoerced by any 'realistic fear of prosecution,' giving due recognition to his 'standing as a physician and to his personal sensitiveness.' With these reasons it appears that the concurring opinion agrees.

In Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 1390, 89 L.Ed. 1725, it was said that 'declaratory judgment procedure may be resorted to only in the sound discretion of the Court and where the interests of justice will be*524 advanced and an adequate and effective judgment may be rendered.' In my view of these cases a present determination of the Constitutional issues is the n ly course which will advance justice, and I can find no sound reason born of considerations as to the possible inadequacy or ineffectiveness of the judgment that might be rendered which justifies the Court's contrary disposition. While ordinarily I would not deem it appropriate to deal, in dissent, with Constitutional issues which the Court has not reached, I shall do so here because such issues, as I see things, are entangled with the Court's conclusion as to the nonjusticiability of these appeals.

Part One.

Justiciability.

There can be no quarrel with the plurality opinion's statement that 'Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification,' but, with deference, the fact that justiciability is not precisely definable does not make it ineffable. Although a large number of cases are brought to bear on the conclusion that is reached, I think it is fairly demonstrable that the authorities fall far short of compelling dismissal of these appeals.2 Even so, it is suggested that the cases*525 do point the way to a 'rigorous insistence on exigent adversity' and a 'policy against premature constitutional decision,' which properly understood does indeed demand that result.

The policy referred to is one to which I unreservedly subscribe. Without undertaking to be definitive, I would suppose it is a policy the wisdom of which is woven of several strands: (1) Due regard for the fact that the source of the Court's power lies ultimately in its duty to decide, in conformity with the Constitution, the particular controversies which come to it, and does not arise from some generalized power of supervision over state and national legislatures; (2) therefore it should insist that litigants bring to the Court interests and rights which require present recognition and controversies demanding immediate resolution; (3) also it follows that the controversy must be one which is in truth and fact the litigant's own, so that the clash of adversary contest which is needed to sharpen and illuminate issues is present and gives that aid on which our adjudicatory system has come to rely; (4) finally, it is required that other means of redress for the particular right claimed be unavailable, so that the process of the Court may not become overburdened and conflicts with other courts or departments of government may not needlessly be created, which might come about if either those truly affected are not the ones demanding relief, or if the relief we can give is not truly needed.

In particularization of this composite policy the Court, in the course of its decisions on matters of justiciability, has developed and given expression to a number of important limitations on the exercise of its jurisdiction, the*526 presence or absence of which here should determine the justiciability of these appeals. Since all of them are referred to here in one way or another, it is well to proceed to a disclosure of those which are not involved in the present appeals, thereby focusing attention on the one factor on which reliance appears to be placed by both the plurality and concurring opinions in this instance.

First: It should by now be abundantly clear that the fact that only Constitutional claims are presented in proceedings seeking anticipatory relief against state criminal statutes does not for that reason alone make the claims premature. See, e.g., Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Whatever general pronouncements may be found to the contrary must, in context, be seen to refer to considerations quite different from anything present in these cases.

Thus in Alabama State Federation of Labor, etc. v. McAdory, supra, anticipatory relief was withheld for the precise reason that normally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts. To the same effect see Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144; Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Beal v. Missouri Pacific R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. Indeed, without belaboring the point, the principle that anticipatory relief against state criminal statutes is not unavailable as a general matter may best be illustrated by several cases recently decided in this Court. In Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, the premise of our action was that anticipatory relief should be obtained, if possible—with review here on certiorari or appeal—in a state court which could then authoritatively construe a new and ambiguous state statute; only if such relief were unavailable, should a Federal District Court exercise its*527 statutory jurisdiction. And in our recent decisions upholding the Constitutionality of state Sunday-closing laws, 366 U.S. 420 et seq., 81 S.Ct. 1101 et seq., not one of the opinions paused even slightly over the appropriateness of anticipatory relief, although in one case that issue was argued, Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122.

Hence, any language in the cases where the Court has abstained from exercising its jurisdiction, to the effect that we should not 'entertain constitutional questions in advance of the strictest necessity,' Parker v. Los Angeles County, supra, 338 U.S. at page 333, 70 S.Ct. at page 164, is not at all apposite in the present cases. For these appeals come to us from the highest court of Connecticut, thus affording us—in company with previous state interpretations of the same statute—a clear construction of the scope of the statute, thereby in effect assuring that our review constitutes no greater interference with state administration than the state procedures themselves allow.

Second: I do not think these appeals may be dismissed for want of 'ripeness' as that concept has been understood in its 'varied applications.'3 There is no lack of 'ripeness' in the sense that is exemplified by cases such as Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; Electric Bond & Share Co. v. Securities & Exchange Comm., 303 U.S. 419, 58 S.Ct. 678, 82 L.Ed. 936; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Inter*528national Longshoremen's and Warehousemen's Union, Local 37 Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650; and perhaps again Parker v. Los Angeles County, supra. In all of those cases the lack of ripeness inhered in the fact that the need for some further procedure, some further contingency of application or interpretation, whether judicial, administrative or executive, or some further clarification of the intentions of the claimant, served to make remote the issue which was sought to be presented to the Court. Certainly the appellants have stated in their pleadings fully and unequivocally what it is that they intend to do; no clarifying or resolving contingency stands in their way before they may embark on that conduct. Thus there is no circumstance besides that of detection or prosecution to make remote the particular controversy. And it is clear beyond cavil that the mere fact that a controversy such as this is rendered still more unavoidable by an actual prosecution, is not alone sufficient to make the case too remote, not ideally enough 'ripe' for adjudication, at the prior stage of anticipatory relief.

Moreover, it follows from what has already been said that there is no such want of ripeness as was presented in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, or in our recent decisions dismissing the appeals in Atlanta Newspapers, Inc. v. Grimes, 364 U.S. 290, 81 S.Ct. 63, 5 L.Ed.2d 39, and United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476, where the records presented for adjudication a controversy so artifically truncated as to make the cases not susceptible to intelligent decision. I cannot see what further elaboration is required to enable us to decide the appellants' claims, and indeed neither the plurality opinion nor the concurring opinion—not-withstanding the latter's characterization of this record as 'skimpy'—suggests what mere grist is needed before the judicial mill could turn.

Third: This is not a feigned, hypothetical, friendly or colorable suit such as discloses 'a want of a truly adversary*529 contest.' Clearly these cases are not analogous to Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379, or South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 12 S.Ct. 921, 36 L.Ed. 712, where prior to consideration the controversy in effect became moot by the merger of the two contesting interests. Nor is there any question of collusion as in Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067, or in United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413. And there is nothing to suggest that the parties by their conduct of this litigation have cooperated to force an adjudication of a Constitutional issue which—were the parties interested solely in winning their cases rather than obtaining a Constitutional decision—might not arise in an arm's-length contested proceeding. Such was the situation in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176, where the parties sought a ruling as to whether a particular passenger rate was unconstitutionally confiscatory, having stipulated all the debatable and contingent facts which otherwise might have rendered a Constitutional decision unnecessary.

In the present appeals no more is alleged or conceded than is consistent with undisputed facts and with ordinary practice in deciding a case for anticipatory relief on demurrer. I think it is unjustifiably stretching things to assume that appellants are not deterred by the threat of prosecution from eg aging in the conduct in which they assert a right to engage, or to assume that appellee's demurrer to the proposition that he asserts the right to enforce the statute against appellants at any time he chooses is anything but a candid one.

Indeed, as will be developed below, I think both the plurality and concurring opinions confuse on this score the predictive likelihood that, had they not brought themselves to appellee's attention, he would not enforce the statute against them, with some entirely suppositious 'tacit agreement' not to prosecute, thereby ignoring the*530 prosecutor's claim, asserted in these very proceedings, of a right, at his unbounded prosecutorial discretion, to enforce the statute.

Fourth: The doctrine of the cases dealing with a litigant's lack of standing to raise a Constitutional claim is said to justify the dismissal of these appeals. The precedents put forward as examples of this doctrine, see the plurality opinion, note 5, as well as cases such as Commonwealth of Massachusetts v. Mellon (Frothingham v. Mellon) 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, and State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531, do indeed stand for the proposition that a legal claim will not be considered at the instance of one who has no real and concrete interest in its vindication. This is well in accord with the grounds for declining jurisdiction suggested above. But this doctrine in turn needs further particularization lest it become a catchall for an unarticulated discretion on the part of this Court to decline to adjudicate appeals involving Constitutional issues.

There is no question but that appellants here are asserting rights which are peculiarly their own, and which, if they are to be raised at all, may be raised most appropriately by them. Cf. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; State of Texas v. Interstate Commerce Comm., supra; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (concurring opinion). Nor do I understand the argument to be that this is the sort of claim which is too remote ever to be pressed by anyone, because no one is ever sufficiently involved. Cf. Commonwealth of Massachusetts v. Mellon (Frothingham v. Mellon), supra. Thus, in truth, it is not the parties pressing this claim but the occasion chosen for pressing it which is objected to. But as has been shown the fact that it is anticipatory relief which is asked cannot of itself make the occasion objectionable.

*531We are brought, then, to the precise failing in these proceedings which is said to justify refusal to exercise our mandatory appellate jurisdiction: that there has been but one recorded Connecticut case dealing with a prosecution under the statute.4 The significance of this lack of recorded evidence of prosecutions is said to make the presentation of appellants' rights too remote, too contingent, too hypothetical for adjudication in the light of the policies already considered. See 367 U.S. at pages 526—530, 81 S.Ct. at pages 1768—1770, supra. In my view it is only as a result of misconceptions both about the purport of the record before us and about the nature of the rights appellants put forward that this conclusion can be reached.

As far as the record is concerned, I think it is pure conjecture, and indeed conjecture which to me seems contrary to realities, that an open violation of the statute by a doctor (or more obviously still by a birth-control clinic) would not resul in a substantial threat of prosecution. Crucial to the opposite conclusion is the description of the 1940 prosecution instituted in State v. Nelson, 126 Conn. 412, 11 A.2d 856, as a 'test case' which, as it is viewed, scarcely even punctuates the uniform state practice of nonenforcement of this statute. I read the history of Connecticut enforcement in a very different light. The Nelson case, as appears from the state court's opinion, was a prosecution of two doctors and a nurse for aiding and abetting violations of this statute by married women in prescribing and advising the use of contraceptive materials by them. It is true that there is*532 evidence of a customary unwillingness to enforce the statute prior to Nelson, for in that case the prosecutor stated to the trial court in a later motion to discontinue the prosecutions that 'When this Waterbury clinic (operated by the defendants) was opened there were in open operation elsewhere in the State at least eight other contraceptive clinics which had been in existence for a long period of time and no questions as to their right to operate had been raised * * *.'5

What must also be noted is that the prosecutor followed this statement with an explanation that the primary purpose of the prosecution was to provide clear warning to all those who, like Nelson, might rely on this practice of nonenforcement. He stated that the purpose of the prosecution was:

'the establishment of the constitutional validity and efficacy of the statutes under which these accused are informed against. Henceforth any person, whether a physician or layman, who violates the provisions of these statutes, must expect to be prosecuted and punished in accordance with the literal provisions of the law.'6*533 Thus the respect in which Nelson was a test case is only that it was brought for the purpose of making entirely clear the State's power and willingness to enforce against 'any person, whether a physician or layman' (emphasis supplied), the statute and to eliminate from future cases the very doubt about the existence of these elements which had resulted in eight open birth-control clinics, and which would have made unfair the conviction of Nelson.

The plurality opinion now finds, and the concurring opinion must assume, that the only explanation of the absence of recorded prosecutions subsequent to the Nelson case is that Connecticut has renounced that intention to prosecute and punish 'any person * * * in accordance with the literal provisions of the law' which it announced in Nelson. But if renunciation of the purposes of the Nelson prosecution is consistent with a lack of subsequent prosecutions, success of that purpose is no less consistent with this lack. I find it difficult to believe that doctors generally and not just those operating specialized clinics—would continue openly to disseminate advice about contraceptives after Nelson in reliance on the State's supposed unwillingness to prosecute, or to consider that high-minded members of the profession would in consequence of such inaction deem themselves warranted in disrespecting this law so long as it is on the books. Nor can I regard as 'chimerical' the fear of enforcement of these provisions that seems to have caused the disappearance of at least nine birth-control clinics.7 In short, I fear that the Court has indulged in a bit of sleight of hand to be rid of this case. It has treated the significance of the absence of prosecutions during the twenty years since Nelson as identical with that of the absence of prosecutions during the years before*534 Nelson. It has ignored the fact that the very purpose of the Nelson prosecution was to change defiance into compliance. It has ignored the very possibility that this purpose may have been successful.8 The result is to postu*535late a security from prosecution for open defiance of the statute which I do not believe the record supports.9

These considerations alone serve to bring appellants so squarely within the rule of Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and Tra x v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, that further demonstration would be pointless.

But even if Dr. Buxton were not in the litigation and appellants the Poes and Doe were seeking simply to use contraceptives without any need of consulting a physician beforehand—which is not the case we have, although it is the case which the plurality opinion of the Court is primarily concerned to discuss—even then I think that it misconceives the concept of justiciability and the nature of these appellants' rights to say that the failure of the State to carry through any criminal prosecution requires dismissal of their appeals.

The Court's disposition assumes that to decide the case now, in the absence of any consummated prosecutions, is unwise because it forces a difficult decision in advance of any exigent necessity therefor. Of course it is abundantly clear that this requisite necessity can exist prior to any actual prosecution, for that is the theory of anticipatory relief, and is by now familiar law. What must be relied on, therefore, is that the historical absence of prosecutions in some way leaves these appellants free to violate the statute without fear of prosecution, whether or not the law is Constitutional, and thus absolves us from the duty of deciding if it is. Despite the sug*536gestion of a 'tougher and truer law' of immunity from criminal prosection and despite speculation as to a 'tacit agreement' that this law will not be enforced, there is, of course, no suggestion of an estoppel against the State if it should attempt to prosecute appellants. Neither the plurality nor the concurring opinion suggests that appellants have some legally cognizable right not to be prosecuted if the statute is Constitutional. What is meant is simply that the appellants are more or less free to act without fear of prosecution because the prosecuting authorities of the State, in their discretion and at their whim, are, as a matter of prediction, unlikely to decide to prosecute.

Here is the core of my disagreement with the present disposition. As I will develop later in this opinion, the most substantial claim which these married persons press is their right to enjoy the privacy of their marital relations free of the enquiry of the criminal law, whether it be in a prosecution of them or of a doctor whom they have consulted. And I cannot agreed that their enjoyment of this privacy is not substantially impinged upon, when they are told that if they use contraceptives, indeed whether they do so or not, the only thing which stands between them and being forced to render criminal account of their marital privacy is the whim of the prosecutor.10 Connecticut's highest court has told us in the clearest terms that, given proof, the prosecutor will succeed if he decides to bring a proceeding against one of the appellants for taking*537 the precise actions appellants have announced they intend to take. The State Court does not agree that there has come into play a 'tougher and truer law than the dead words of the written text,' and in the light of twelve unsuccessful attempts since 1943 to change this legislation, Poe v. Ullman, 147 Conn. 48, 56, note 2, 156 A.2d 508, 513, this position is not difficult to understand. Prosecution and conviction for the clearly spelled-out actions the appellants wish to take is not made unlikely by any fortuitous factor outside the control of the parties, nor is it made uncertain by possible variations in the actions appellants actually take from those the state courts have already passed upon. All that stands between the appellants and jail is the legally unfettered whim of the prosecutor and the Constitutional issue this Court today refuses to decide.

If we revert again to the reasons underlying our reluctance to exercise a jurisdiction which technically we possess, and the concrete expression of those underlying reasons in our cases, see 367 U.S. at pages 526—531, 81 S.Ct. at pages 1768—1770, supra, then I think it must become clear that there is no justification for failing to decide these married persons's appeals. The controversy awaits nothing but an actual prosecution, and, as will be shown, the substantial damage against which these appellants, Mrs. Doe and the Poes, are entitled to protection will be accomplished by such a prosecution, whatever its outcome in the state courts or here. By the present decision, although as a general matter the parties would be entitled to our review in an anticipatory proceeding which the State allowed to be instituted in its courts, these appellants are made to await actual prosecution before we will hear them. Indeed it appears that whereas appellants would surely have been entitled to review were this a new statute, see Harrison v. N.A.A.C.P., supra, the State here is enabled to maintain at least some substantial measure of compliance with*538 this statute and still obviate any review in this Court, by the device of purely discretionary prosecutorial inactivity. It seems to me to destroy the whole purpose of anticipatory relief to consider the prosecutor's discretion, once all legal and administrative channels have been cleared, as in any way analogous to those other contingencies which make remote a controversy presenting Constitutional claims.

In this light it is not surprising that the Court's position is without support in the precedents.11 Indeed it seems to me that Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, provides very clear authority contrary to the position of the Court in this case, for there a Court which included Justices Holmes, Brandeis, and Stone rejected a claim of prematureness and then passed upon and held unconstitutional a state statute whose sanctions were not even to become effective for more than seventeen months after the time the case was argued to this Court. The Court found allegations of present loss of business, caused by the threat of the statute's future enforcement against the Society's clientele, sufficient to make the injury to the Society 'present and very real.' 268 U.S. at page 536, 45 S.Ct. at page 574. I cannot regard as less present, or less real, the tendency to discourage the exercise of the liberties of these appellants, caused by reluctance to submit their freedoms from prose*539cution and conviction to the discretion of the Connecticut prosecuting authorities. I therefore think it incumbent on us to consider the merits of appellants' Constitutional claims.

Part Two.

Constitutionality.

I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life. I reach this conclusion, even though I find it difficult and unnecessary at this juncture to accept appellants' other argument that the judgment of policy behind the statute, so applied, is so arbitrary and unreasonable as to render the enactment invalid for that reason alone. Since both the contentions draw their basis from no explicit language of the Constitution, and have yet to find expression in any decision of this Court, I feel it desirable at the outset to state the framework of Constitutional principles in which I think the issue must be judged.

I.

In reviewing state legislation, whether considered to be in the exercise of the State's police powers, or in provision for the health, safety, morals or welfare of its people, it is clear that what is concerned are 'the powers of government inherent in every sovereignty.' The License Cases, 5 How. 504, 583, 12 L.Ed. 256. Only to the extent that the Constitution so requires may this Court interfere with the exercise of this plenary power of government. Barron for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672. But precisely because it is the Constitution alone which warrants judicial interference in sovereign operations of the State,*540 the basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. But as inescapable as is the rational process in Constitutional adjudication in general, nowhere is it more so than in giving meaning to the prohibitions of the Fourteenth Amendment and, where the Federal Government is involved, the Fifth Amendment, against the deprivation of life, liberty or property without due process of law.

It is but a truism to say that this provision of both Amendments is not self-explanatory. As to the Fourteenth, which is involved here, the history of the Amendment also sheds little light on the meaning of the provision. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights, 2 Stan.L.Rev. 15. It is important to note, however, that two views of the Amendment have not been accepted by this Court as delineating its scope. One view, which was ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power, sought to limit the provision to a guarantee of procedural fairness. See Davidson v. City of New Orleans, 96 U.S. 97, 105, 24 L.Ed. 616; Brandeis, J., in Whitney v. People of State of California, 274 U.S. 357, at page 373, 47 S.Ct. 641, at page 647, 71 L.Ed. 1095; Warren, The New 'Liberty' under the 14th Amendment, 39 Harv.L.Rev. 431; Reeder, The Due Process Clauses and 'The Substance of Individual Rights,' 58 U.Pa.L.Rev. 191; Shattuck, The True Meaning of the Term 'Liberty' in Those Clauses in the Federal and State Constitutions Which Protect 'Life, Liberty, and Property,' 4 Harv.L.Rev. 365. The other view which has been rejected would have it that the Fourteenth Amendment, whether by way of the Privileges and Immunities Clause or the Due*541 Process Clause, applied against the States only and precisely those restraints which had prior to the Amendment been applicable merely to federal action. However, 'due process' in the consistent view of this Court has even been a broader concept than the first view and more flexible than the second.

Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e.g., Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349; Butler v. Perry, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672; Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194. Thus the guaranties of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny,' have in this country 'become bulwarks also against arbitrary legislation.' Hurtado v. People of State of California, 110 U.S. 516, at page 532, 4 S.Ct. 111, at page 119, 28 L.Ed. 232.

However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights 'which are * * * fundamental; which belong * * * to the citizens of all free governments,' Corfield v. Coryell, Fed.Cas.No.3,230, 4 Wash.C.C. 371, 380, for 'the purposes (of securing) which men enter into society,' Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. The Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394; Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; Presser v. State of Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519;*542 Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 481; Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1046; Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627; Farrington v. T. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of*543 history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780; Booth v. People of State of Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623; Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Skinner v. State of Oklahoma, 316 U.S. 535, 544, 62 S.Ct. 1110, 1114, 86 L.Ed. 1655 (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, 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. Cf. Skinner v. State of Oklahoma, supra; Bolling v. Sharpe, supra.

As was said in Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 'this court has not attempted to define with exactness the liberty thus guaranteed * * *. Without doubt, it denotes, not merely freedom from bodily restraint * * *.' Thus, for instance, when in that case and in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, the Court struck down laws which sought not to require what children must learn in schools, but to prescribe, in the first case, what they must not learn, and in the second, where they must acquire their learning, I do not think it was wrong to put those decisions on 'the right of the individual to * * * establish a home and bring up children,' Meyer v. State of Nebraska, ibid., or on the basis that 'The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruc*544tion from public teachers only,' Pierce v. Society of Sisters, 268 U.S. at page 535, 45 S.Ct. at page 573. I consider this so, even though today those decisions would probably have gone by reference to the concepts of freedom of expression and conscience assured against state action by the Fourteenth Amendment, concepts that are derived from the explicit guarantees of the First Amendment against federal encroachment upon freedom of speech and belief. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 and 656, 63 S.Ct. 1178 and 1193, 87 L.Ed. 1628 (dissenting opinion); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645. For it is the purposes of those guarantees and not their text, the reasons for their statement by the Framers and not the statement itself, see Palko v. State of Connecticut, 302 U.S. 319, 324—327, 58 S.Ct. 149, 151 153, 82 L.Ed. 288; United States v. Carolene Products Co., 304 U.S. 144, 152—153, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234, which have led to their present status in the compendious notion of 'liberty' embraced in the Fourteenth Amendment.

Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no 'mechanical yard-stick,' no 'mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take 'its place in relation to what went before and further (cut) a channel for what is to come.' Irvine v. People of State of California, 347 U.S. 128, 147, 74 S.Ct. 381, 391, 98 L.Ed. 561 (dissenting opinion). The matter was well put in Rochin v. People of State of California, 342 U.S. 165, 170—171, 72 S.Ct. 205, 208, 96 L.Ed. 183:

'The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from con*545siderations that are fused in the whole nature of our judicial process. * * * These are considerations deeply rooted in reason and in the compelling traditions of the legal profession.'

On these premises I turn to the particular Constitutional claim in this case.

II.

Appellants contend that the Connecticut statute deprives them, as it unquestionably does, of a substantial measure of liberty in carrying on the most intimate of all personal relationships, and that it does so arbitrarily and without any rational, justifying purpose. The State, on the other hand, asserts that it is acting to protect the moral welfare of its citizenry, both directly, in that it considers the practice of contraception immoral in itself, and instrumentally, in that the availability of contraceptive materials tends to minimize 'the disastrous consequence of dissolute action,' that is fornication and adultery.

It is argued by appellants that the judgment, implicit in this statute—that the use of contraceptives by married couples is immoral—is an irrational one, that in effect it subjects them in a very important matter to the arbitrary whim of the legislature, and that it does so for no good purpose. Where, as here, we are dealing with what must be considered 'a basic liberty,' cf. Skinner v. State of Oklahoma, supra, 316 U.S. at page 541, 62 S.Ct. at page 1113, 'There are limits to the extent to which the presumption of constitutionality can be pressed,' id., 316 U.S. at page 544, 62 S.Ct. at page 1115, (concurring opinion), and the mere assertion that the action of the State finds justification in the controversial realm of morals cannot justify alone any and every restriction it imposes. See Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the com*546munity, but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 1153, 1218.

It is in this area of sexual morality, which contains many proscriptions of consensual behavior having little or no direct impact on others, that the State of Connecticut has expressed its moral judgment that all use of contraceptives is improper. Appellants cite an impressive list of authorities who, from a great variety of points of view, commend the considered use of contraceptives by married couples. What they do not emphasize is that not too long ago the current of opinion was very probably quite the opposite,12 and that even today the issue is not*547 free of controversy. Certainly, Connecticut's judgment is no more demonstrably correct or incorrect than are the varieties of judgment, expressed in law, on marriage and divorce, on adult consensual homosexuality, abortion, and sterilization, or euthanasia and suicide. If we had a case before us which required us to decide simply, and in abstraction, whether the moral judgment implicit in the application of the present statute to married couples was a sound one, the very controversial nature of these questions would, I think, require us to hesitate long before concluding that the Constitution precluded Connecticut from choosing as it has among these various views. Cf. Alberts v. State of California, 354 U.S. 476, 500—503, 77 S.Ct. 1304, 1317—1319, 1 L.Ed.2d 1498 (concurring opinion).

But, as might be expected, we are not presented simply with this moral judgment to be passed on as an abstract proposition. The secular state is not an examiner of consciences: it must operate in the realm of behavior, of overt actions, and where it does so operate, not only the underlying, moral purpose of its operations, but also the choice of means becomes relevant to any Constitutional judgment on what is done. The moral presupposition on which appellants ask us to pass judgment could form the basis of a variety of legal rules and administrative choices, each presenting a different issue for adjudication. For example, one practical expression of the moral view propounded here might be the rule that a marriage in which*548 only contraceptive relations had taken place had never been consummated and could be annulled. Compare, e.g., 2 Bouscaren, Canon Law Digest, 307—313. Again, the use of contraceptives might be made a ground for divorce, or perhaps tax benefits and subsidies could be provided for large families. Other examples also readily suggest themselves.

III.

Precisely what is involved here is this: the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law. Potentially, this could allow the deployment of all the incidental machinery of the criminal law, arrests, searches and seizures; inevitably, it must mean at the very least the lodging of criminal charges, a public trial, and testimony as to the corpus delicti. Nor could any imaginable elaboration of presumptions, testimonial privileges, or other safeguards, alleviate the necessity for testimony as to the mode and manner of the married couples' sexual relations, or at least the opportunity for the accused to make denial of the charges. In sum, the statute allows the State to enquire into, prove and punish married people for the private use of their marital intimacy.

This, then, is the precise character of the enactment whose Constitutional measure we must take. The statute must pass a more rigorous Constitutional test than that going merely to the plausibility of its underlying rationale. See 367 U.S. at pages 542—545, 81 S.Ct. at pages 1776—1778, supra. This enactment involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of 'liberty,' the privacy of the home in its most basic sense, and it is this which requires that the statute be subjected to 'strict scrutiny.' Skinner v. State of Oklahoma, supra, 316 U.S. at page 541, 62 S.Ct. at page 1113.

*549That aspect of liberty which embraces the concept of the privacy of the home receives explicit Constitutional protection at two places only. These are the Third Amendment, relating to the quartering of soldiers,13 and the Fourth Amendment, prohibiting unreasonable searches and seizures.14 While these Amendments reach only the Federal Government, this Court has held in the strongest terms, and today again confirms, that the concept of 'privacy' embodied in the Fourth Amendment is part of the 'ordered liberty' assured against state action by the Fourteenth Amendment. See Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684.

It is clear, of course, that this Connecticut statute does not invade the privacy of the home in the usual sense, since the invasion involved here may, and doubtless usually would, be accomplished without any physical intrusion whatever into the home. What the statute undertakes to do, however, is to create a crime which is grossly offensive to this privacy, while the Constitution refers only to methods of ferreting out substantive wrongs, and the procedure it requires presupposes that substantive offenses may be committed and sought out in the privacy of the home. But such an analysis forecloses any claim to Constitutional protection against this form of deprivation of privacy, only if due process in this respect is limited to what is explicitly provided in the Constitution, divorced from the rational purposes, historical roots, and subsequent developments of the relevant provisions.

*550Perhaps the most comprehensive statement of the principle of liberty underlying these aspects of the Constitution was given by Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, at page 478, 48 S.Ct. 564, at page 572, 72 L.Ed. 944:

'The protection guaranteed by the (Fourth and Fifth) Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, 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. * * *'

I think the sweep of the Court's decisions, under both the Fourth and Fourteenth Amendments, amply shows that the Constitution protects the privacy of the home against all unreasonable intrusion of whatever character. '(These) principles * * * affect the very essence of constitutional liberty and security. They reach farther than (a) concrete form of the case * * * before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. * * *' Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746. 'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.' Wolf v. People of State of Colorado, supra, 338 U.S. at page 27, 69 S.Ct. at page 1361. In addition, see, e.g., Davis v. United States, 328 U.S. 58i, 587, 66 S.Ct. 1256, 1258, 90 L.Ed. 1453;*551 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202—203, 66 S.Ct. 494, 502, 90 L.Ed. 614; Frank v. State of Maryland, 359 U.S. 360, 365—366, 79 S.Ct. 804, 808—809, 3 L.Ed.2d 877; Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734.

It would surely be an extreme instance of sacrificing substance to form were it to be held that the Constitutional principle of privacy against arbitrary official intrusion comprehends only physical invasions by the police. To be sure, the times presented the Framers with two particular threats to that principle, the general warrant, see Boyd v. United States, supra, and the quartering of soldiers in private homes. But though 'Legislation, both statutory and constitutional, is enacted, * * * from an experience of evils * * * its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. * * * (A) principle, to be vital, must be capable of wider application than the mischief which gave it birth.' Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793.

Although the form of intrusion here—the enactment of a substantive offense—does not, in my opinion, preclude the making of a claim based on the right of privacy embraced in the 'liberty' of the Due Process Clause, it must be acknowledged that there is another sense in which it could be argued that this intrusion on privacy differs from what the Fourth Amendment, and the similar concept of the Fourteenth, were intended to protect: here we have not an intrusion into the home so much as on the life which characteristically has its place in the home. But to my mind such a distinction is so insubstantial as to be captious: if the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw*552 to its protection the principles of more than one explicitly granted Constitutional right. Thus, Mr. Justice Brandeis, writing of a statute which made 'it punishable to teach (pacifism) in any place (to) a single person * * * no matter what the relation of the parties may be,' found such a 'statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them.' Gilbert v. State of Minnesota, 254 U.S. 325, 335—336, 41 S.Ct. 125, 128, 65 L.Ed. 287 (dissenting opinion). This same principle is expressed in the Pierce and Meyer cases, supra. These decisions, as was said in Prince v. Commonwealth of Massachusetts, 321 U.S. 158, at page 166, 64 S.Ct. 438, at page 442, 88 L.Ed. 645, 'have respected the private realm of family life which the state cannot enter.'

Of this whole 'private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations. We would indeed be straining at a gnat and swallowing a camel were we to show concern for the niceties of property law involved in our recent decision, under the Fourth Amendment, in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, and yet fail at least to see any substantial claim here.

Of course, just as the requirement of a warrant is not inflexible in carrying out searches and seizures, see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, so there are countervailing considerations at this more fundamental aspect of the right involved. '(T)he family * * * is not beyond regulation,' Prince v. Commonwealth of Massachusetts, supra, and it would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much*553 has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. See 367 U.S. at pages 545—548, 81 S.Ct. at pages 1778—1780, supra. But not to discriminate between what is involved in this case and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made.

Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.

In sum, even though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy, is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection.

In my view the appellants have presented a very pressing claim for Constitutional protection. Such difficulty as the claim presents lies only in evaluating it against the State's countervailing contention that it be allowed to enforce, by whatever means it deems appropriate, its judgment of the immorality of the practice this law con*554demns. In resolving this conflict a number of factors compel me to conclude that the decision here must most emphatically be for the appellants. Since, as it appears to me, the statute marks an abridgment of important fundamental liberties protected by the Fourteenth Amendment, it will not do to urge in justification of that abridgment simply that the statute is rationally related to the effectuation of a proper state purpose. A closer scrutiny and stronger justification than that are required. See 367 U.S. at pages 542—545, 81 S.Ct. at pages 1776—1778, supra.

Though the State has argued the Constitutional permissibility of the moral judgment underlying this statute, neither its brief, nor its argument, nor anything in n y of the opinions of its highest court in these or other cases even remotely suggests a justification for the obnoxiously intrusive means it has chosen to effectuate that policy. To me the very circumstance that Connecticut has not chosen to press the enforcement of this statute against individual users, while it nevertheless persists in asserting its right to do so at any time—in effect a right to hold this statute as an imminent threat to the privacy of the households of the State—conduces to the inference either that it does not consider the policy of the statute a very important one, or that it does not regard the means it has chosen for its effectuation as appropriate or necessary.

But conclusive, in my view, is the utter novelty of this enactment. Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.15 Indeed, a diligent search has*555 revealed that no nation, including several which quite evidently share Connecticut's moral policy,16 has seen fit to effectuate that policy by the means presented here.

Though undoubtedly the States are and should be left free to reflect a wide variety of policies, and should be allowed broad scope in experimenting with various means of promoting those policies, I must agree with Mr. Justice Jackson that 'There are limits to the extent to which a legislatively represented majority may conduct * * * experiments at the expense of the dignity and personality' of the individual. Skinner v. State of Oklahoma, supra (316 U.S. 535, 62 S.Ct. 1116). In this instance these limits are, in my view, reached and passed.

I would adjudicate these appeals and hold this statute unconstitutional, insofar as it purports to make criminal the conduct contemplated by these married women. It follows that if their conduct cannot be a crime, appellant Buxton cannot be an accomplice thereto. I would reverse the judgment in each of these cases.

1

These statutes, Conn.Gen.Stat.Rev.1958, § 53—32 (forbidding the use of contraceptives), and Conn.Gen.Stat.Rev.1958, § 54—196 (the general accessory law), are set forth in note 2 of the plurality opinion, ante, 367 U.S. at page 499, 81 S.Ct. at page 1753.

2

Only two cases are squarely relied on, C.I.O. v. McAdory, 325 U.S. 472, 65 S.Ct. 1395, 89 L.Ed. 1741, a companion case to Alabama State Federation of Labor, etc. v. McAdory, supra, discussed at pages 526—527 of 367 U.S., at page 1768 of 81 S.Ct., infra, and tendering the same issues; and Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311. The appeal in the principal McAdory case was dismissed because the state statute there challenged had not yet been construed by the state courts, and it was thought that state construction might remove some Constitutional doubts. In the companion McAdory case, the appeal was likewise dismissed, the State having 'agreed not to enforce § 7 of the Act (there challenged) until the final decision as to the section's validity by this Court in Alabama State Federation of Labor v. McAdory * * *.' Id., 325 U.S. at page 475, 65 S.Ct. at page 1397. In the present appeals there is no agreement not to prosecute, no companion case awaiting disposition, and no uncertainty about state law due to lack of state construction.

As to Ex parte La Prade, supra, see note 11, infra.

3

Manifestly the type of ripeness found wanting in cases such as Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531; State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289, and State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154, is not lacking in the cases before us. For the recurrent theme of those cases, all of which challenge federal action as an encroachment on state sovereignty, is the fact that the mere existence of state sovereign powers and prerogatives which may bear generally upon individual rights raises no such concrete and practical issues as courts are accustomed to consider, so that adjudication upon their validity in such circumstances would take place in the most abstract kind of setting.

4

Some support is sought to be drawn for the supposition of state acquiescence in violation of the statute from the case of State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863. But that case held no more than that contraceptive materials could not be seized under the authority of a statute interpreted to deal with the seizure of gambling paraphernalia.

5

The 'circumstances' of the Nelson case may best be gathered from the remarks of the State's prosecuting attorney, Mr. Fitzgerald, seeking the approval of the trial judge for a nolle prosequi in that case after the decision of the State Supreme Court. In an affidavit accompanying a transcript of the proceedings on the State's motion, the attorney for the defendants stated that 'said criminal prosecutions were prosecutions instituted by the State upon complaint of a citizen and were instituted in no sense with the prior knowledge or approval of the accused and there was no pre-trial acquiescence by the accused that said actions would be instituted to test the constitutionality of the statutes in question.'

6

This statement was made in the same proceedings referred to in note 5, supra.

7

See Brief of Planned Parenthood Federation of America, Inc., as amicus curiae, p. 4, and Appendix f.

8

The concurring opinion concludes, apparently on the basis of the Nelson episode, that the 'true controversy in this case is over the opening of birth-control clinics on a large scale * * *.' It should be said at once that as to these appeals this is an entirely unwarranted assumption. The amicus curiae in this case, the Planned Parenthood Federation of America, Inc., is indeed interested in such clinics, see note 7, supra, but as to the actual parties here, there is not one word in the record or their briefs to suggest that their interest is anything other than they say it is. The Nelson prosecution, it is true, involved a doctor and nurses at a birth-control clinic, but there is nothing about these statutes as they have been authoritatively construed in this and previous cases, that limits their application to advice given by a doctor in a clinic of that sort, as opposed to advice given by a doctor in some less specialized clinic, a hospital or in his own office.

The only conceivable sense in which 'The true controversy in this case is over the opening of birth-control clinics' must lie in the circumstance that since the notorious and avowed purpose of such a clinic is the violation of these statutes, there would not be the same problem of detection or proof of violations as might otherwise present itself. The relevance in turn of this circumstances must be that, in the view of the concurring opinion there is a present threat of enforcement against any such clinic which I too believe—but coupled with a further assumption—one shared by the plurality opinion though lacking any factual warrant whatever—that these statutes do not also deter members of the medical profession in general from violating these statutes. Furthermore both opinions must share the assumption that the appellants may be required to hold what may be their constitutional rights at the whim and pleasure of the prosecutor. In sum, the strong implication of the concurring opinion that a suit for anticipatory relief brought by a birth-control clinic (though it would raise no different issues and present a record no less 'skimpy') would succeed in invoking our jurisdiction where these suits fail, exposes the fallacy underlying the Court's disposition: the unprecedented doctrine that a suit for anticipatory relief will be entertained at the instance of one who is forced to violate a statute flagrantly, but not at the urging of one who may violate it surreptitiously with a high probability of avoiding detection.

9

In this regard it is worth comparing the record of the Federal Communications Commission in enforcing its regulations by means of a threat of revocation of station licenses. The Commission has not, as is generally known, used this sanction much more readily than Connecticut has invoked criminal penalties to enforce the laws here in question, but no one would discount entirely the efficacy of the threat or suggest that open defiance of Commission regulations is without substantial risks.

10

It is suggested that prosecution is unlikely because of an interspousal testimonial privilege in Connecticut. Assuming that such a privilege exists and is applicable here, the testimony of either spouse is not necessary to a conviction. Furthermore, as will be argued, the rea incursion here inheres in the institution of a prosecution in this matter at all, with the consequent need of an opportunity for the parties—guilty or innocent—to defend themselves against the charges. See 367 U.S. at page 548, 81 S.Ct. at page 1779, infra.

11

There is a much discredited dictum in Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311, that in an injunction action there must be an allegation of threatened immediate enforcement of the statute. See 50 Yale L.J. 1278; Borchard, Challenging 'Penal' Statutes by Declaratory Action, 52 Yale L.J. 445; 62 Harv.L.Rev. 870—871. But against this dictum (which even in its context was justified only as a natural consequence of the rule of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, involving suits against state officers) one can array numerous cases in which proof of any such immediate threat was considered unnecessary and the Court proceeded to a determination of the merits. See, e.g., Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; Currin v. Wallace, 30 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441.

12

The so-called Comstock Law, 17 Stat. 598, may be regarded as characteristic of the attitude of a large segment of public opinion on this matter through the end of the last century. It was only by judicial interpretation at a later date that the absolute prohibitions of the law were qualified to exclude professional medical use. Youngs Rubber Corp. v. C. I. Lee & Co., 2 Cir., 45 F.2d 103; Davis v. United States, 6 Cir., 62 F.2d 473; United States v. One Package, 2 Cir., 86 F.2d 737; 50 Harv.L.Rev. 1312. However, the Comstock Law in its original form 'started a fashion' and many States enacted similar legislation, some of which is still on the books. See Stone and Pilpel, The Social and Legal Status of Contraception, 22 N.C.L.Rev. 212; Legislation Note, 45 Harv.L.Rev. 723; Note, 6 U. of Chi.L.Rev. 260; Murray, America's Four Conspiracies, at 32—33, in Religion in America (Cogley ed.). Indeed the criticism of these measures assume that they represented general public opinion, though of a bygone day. See, e.g., Knopf, Various Aspects of Birth Control; Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories, foreword and introduction; Stone and Pilpel, supra; Hearings on H.R. 11082, 72d Cong., 1st Sess. See generally, Broun and Leech, Anthony Comstock; Dennett, Birth Control Laws.

13

'No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.'

14

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

15

See tabulation of statutes in Birth Control Legislation, 9 Cleveland-Marshall Law Review, 245 (1960); Legislation Note, 45 Harv.L.Rev. 723 (1932); Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories (1938).

16

Unqualified disapproval of contraception is implicit in the laws of Belgium, Droit Penal, § 383; France, Code Penal, Art. 317; Ireland, Censorship of Publications Act of 1929, §§ 16, 17, Criminal Law Amendment Act of 1935, § 17; Italy, Codice Penale, Arts. 553, 555; and Spain, Codigo Penal, Art. 416. Compare the more permissive legislation in Canada, Criminal Code, § 150; Germany, Strafgesetzbuch, § 184; Switzerland, Code Penal, Art. 211.

Mr. Justice STEWART, dissenting.

For the reasons so convincingly advanced by both Mr. Justice DOUGLAS and Mr. Justice HARLAN, I join them in dissenting from the dismissal of these appeals. Since the appeals are nonetheless dismissed, my dissent need go no further. However, in refraining from a discussion of the constitutional issues, I in no way imply that the ultimate result I would reach on the merits of these controversies would differ from the conclusions of my dissenting Brothers.

Estelle T. Griswold et al. v. State of Connecticut.

Argued March 29-30, 1965.

Decided June 7, 1965.

APPEAL FROM THE SUPREME COURT OF ERRORS OF CONNECTICUT.

Thomas I. Emerson argued the cause for appellants. With him on the briefs was Catherine G. Roraback.

Joseph B. Clark argued the cause for appellee. With him on the brief was Julius Maretz.

Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour and Eleanor M. Fox for Dr. John M. Adams et al.; by Morris L. Ernst, Harriet F. Pilpeland Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.; by Alfred L. Scanlon for the Catholic Council on Civil Liberties, and by Rhoda H. Karpatkin, Melvin L. Wulf and Jerome E. Caplan for the American Civil Liberties Union et al.

*480 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven—a center open and operating from November 1 to November 10, 1961, when appellants were arrested.

They gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.

The statutes whose constitutionality is involved in this appeal are §§ 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."

The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment. The Appellate Division of the Circuit Court affirmed. The Supreme Court of Errors affirmed that judgment. 151 Conn. 544, 200 A. 2d 479. We noted probable jurisdiction. 379 U. S. 926.

*481 We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship. Tileston v. Ullman,318 U. S. 44, is different, for there the plaintiff seeking to represent others asked for a declaratory judgment. In that situation we thought that the requirements of standing should be strict, lest the standards of "case or controversy" in Article III of the Constitution become blurred. Here those doubts are removed by reason of a criminal conviction for serving married couples in violation of an aiding-and-abetting statute. Certainly the accessory should have standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be, a crime.

This case is more akin to Truax v. Raich, 239 U. S. 33, where an employee was permitted to assert the rights of his employer; to Pierce v. Society of Sisters, 268 U. S. 510, where the owners of private schools were entitled to assert the rights of potential pupils and their parents; and to Barrows v. Jackson, 346 U. S. 249, where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the covenantors because she had conveyed her property to Negroes, was allowed to raise the issue that enforcement of the covenant violated the rights of prospective Negro purchasers to equal protection, although no Negro was a party to the suit. And see Meyer v. Nebraska, 262 U. S. 390; Adler v. Board of Education, 342 U. S. 485; NAACP v. Alabama, 357 U. S. 449; NAACP v. Button,371 U. S. 415. The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments *482 suggest that Lochner v. New York, 198 U. S. 45, should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish,300 U. S. 379; Olsen v. Nebraska, 313 U. S. 236; Lincoln Union v. Northwestern Co., 335 U. S. 525; Williamson v. Lee Optical Co., 348 U. S. 483; Giboney v. Empire Storage Co., 336 U. S. 490. 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. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice—whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U. S. 183, 195)—indeed the freedom of the entire university community. Sweezy v. New Hampshire,354 U. S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U. S. 109, 112; Baggett v. Bullitt, 377 U. S. 360, 369. Without *483 those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

In NAACP v. Alabama, 357 U. S. 449, 462, we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U. S. 415, 430-431. In Schware v. Board of Bar Examiners,353 U. S. 232, we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.

Those cases involved more than the "right of assembly" —a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U. S. 353. The right of "association," like the right of belief (Board of Education v. Barnette, 319 U. S. 624), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.

*484 The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U. S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."* We recently referred *485 in Mapp v. Ohio,367 U. S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960).

We have had many controversies over these penumbral rights of "privacy and repose." See, e. g., Breard v. Alexandria, 341 U. S. 622, 626, 644; Public Utilities Comm'n v. Pollak, 343 U. S. 451; Monroe v. Pape, 365 U. S. 167; Lanza v. New York, 370 U. S. 139; Frank v. Maryland, 359 U. S. 360; Skinner v. Oklahoma, 316 U. S. 535, 541. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 377 U. S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The *486 very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Reversed.

*

 The Court said in full about this right of privacy:

"The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes 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, where that right has never been forfeited by his conviction of some public offence,—it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other." 116 U. S., at 630.

MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring.

I agree with the Court that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all of the first eight Amendments (see my concurring opinion in Pointer v. Texas, 380 U. S. 400, 410, and the dissenting opinion of MR. JUSTICE BRENNAN in Cohen v. Hurley, 366 U. S. 117, 154), I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution1 is supported both by numerous *487 decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 484. I add these words to emphasize the relevance of that Amendment to the Court's holding.

The Court stated many years ago that the Due Process Clause protects those liberties that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97, 105. In Gitlow v. New York, 268 U. S. 652, 666, the Court said:

"For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and `liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." (Emphasis added.)

*488 And, in Meyer v. Nebraska, 262 U. S. 390, 399, the Court, referring to the Fourteenth Amendment, stated:

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also [for example,] the right . . . to marry, establish a home and bring up children . . . ."

This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights.2 The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.

The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights3 could not be sufficiently broad to cover all essential *489 rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.4

In presenting the proposed Amendment, Madison said:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the *490 last clause of the fourth resolution [the Ninth Amendment]." I Annals of Congress 439 (Gales and Seaton ed. 1834).

Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:

"In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people." II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891).

He further stated, referring to the Ninth Amendment:

"This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso,that a negation in particular cases implies an affirmation in all others." Id., at 651.

These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.5

While this Court has had little occasion to interpret the Ninth Amendment,6 "[i]t cannot be presumed that any *491 clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174. In interpreting the Constitution, "real effect should be given to all the words it uses." Myers v. United States, 272 U. S. 52, 151. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that *492 "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Emphasis added.)

A dissenting opinion suggests that my interpretation of the Ninth Amendment somehow "broaden[s] the powers of this Court." Post, at 520. With all due respect, I believe that it misses the import of what I am saying. I do not take the position of my Brother BLACK in his dissent in Adamson v. California, 332 U. S. 46, 68, that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court's opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. See, e. g., Bolling v. Sharpe, 347 U. S. 497; Aptheker v. Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S. 116; Cantwell v. Connecticut, 310 U. S. 296; NAACP v. Alabama, 357 U. S. 449; Gideon v. Wainwright, 372 U. S. 335; New York Times Co. v. Sullivan, 376 U. S. 254. The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority *493 of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights.

Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U. S. 75, 94-95.

In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] . . . as to be ranked as fundamental." Snyder v. Massachusetts, 291 U. S. 97, 105. The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' . . . ." Powell v. Alabama, 287 U. S. 45, 67. "Liberty" also "gains content from the emanations of . . . specific [constitutional] guarantees" and "from experience with the requirements of a free society." Poe *494 v. Ullman, 367 U. S. 497, 517 (dissenting opinion of MR. JUSTICE DOUGLAS).7

I agree fully with the Court that, applying these tests, the right of privacy is a fundamental personal right, emanating "from the totality of the constitutional scheme under which we live." Id., at 521. Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U. S. 438, 478, comprehensively summarized the principles underlying the Constitution's guarantees of privacy:

"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, 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."

*495 The Connecticut statutes here involved deal with a particularly important and sensitive area of privacy—that of the marital relation and the marital home. This Court recognized in Meyer v. Nebraska, supra, that the right "to marry, establish a home and bring up children" was an essential part of the liberty guaranteed by the Fourteenth Amendment. 262 U. S., at 399. In Pierce v. Society of Sisters, 268 U. S. 510, the Court held unconstitutional an Oregon Act which forbade parents from sending their children to private schools because such an act "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." 268 U. S., at 534-535. As this Court said in Prince v. Massachusetts, 321 U. S. 158, at 166, the Meyer and Pierce decisions "have respected the private realm of family life which the state cannot enter."

I agree with MR. JUSTICE HARLAN's statement in his dissenting opinion in Poe v. Ullman, 367 U. S. 497, 551-552: "Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. . . . Of this whole `private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations."

The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution *496 explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization—surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

My Brother STEWART, while characterizing the Connecticut birth control law as "an uncommonly silly law," post, at 527, would nevertheless let it stand on the ground that it is not for the courts to " `substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.' " Post, at 528. Elsewhere, I have stated that "[w]hile I quite agree with Mr. Justice Brandeis that . . . `a . . . State may . . . serve as a laboratory; and try novel social and economic experiments,' New State Ice Co. v. Liebmann, 285 U. S. 262, 280, 311 (dissenting opinion), I do not believe that this includes the power to experiment with the fundamental liberties of citizens . . . ."8 The vice of the dissenters' views is that it would permit such experimentation by the States in the area of the fundamental personal rights of its citizens. I cannot agree that the Constitution grants such power either to the States or to the Federal Government.

The logic of the dissents would sanction federal or state legislation that seems to me even more plainly unconstitutional than the statute before us. Surely the Government, absent a showing of a compelling subordinating state interest, could not decree that all husbands and wives must be sterilized after two children have been born *497 to them. Yet by their reasoning such an invasion of marital privacy would not be subject to constitutional challenge because, while it might be "silly," no provision of the Constitution specifically prevents the Government from curtailing the marital right to bear children and raise a family. While it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts. Yet, if upon a showing of a slender basis of rationality, a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law requiring compulsory birth control also would seem to be valid. In my view, however, both types of law would unjustifiably intrude upon rights of marital privacy which are constitutionally protected.

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling," Bates v. Little Rock, 361 U. S. 516, 524. The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v. Florida, 379 U. S. 184, 196. See Schneiderv. Irvington, 308 U. S. 147, 161.

Although the Connecticut birth-control law obviously encroaches upon a fundamental personal liberty, the State does not show that the law serves any "subordinating [state] interest which is compelling" or that it is "necessary *498. . . to the accomplishment of a permissible state policy." The State, at most, argues that there is some rational relation between this statute and what is admittedly a legitimate subject of state concern—the discouraging of extra-marital relations. It says that preventing the use of birth-control devices by married persons helps prevent the indulgence by some in such extramarital relations. The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception, see Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582. But, in any event, it is clear that the state interest in safeguarding marital fidelity can be served by a more discriminately tailored statute, which does not, like the present one, sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples. See Aptheker v. Secretary of State, 378 U. S. 500, 514; NAACP v. Alabama, 377 U. S. 288, 307-308; McLaughlin v. Florida, supra, at 196. Here, as elsewhere, where, "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U. S. 415, 438. The State of Connecticut does have statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication. See Conn. Gen. Stat. §§ 53-218, 53-219 et seq. These statutes demonstrate that means for achieving the same basic purpose of protecting marital fidelity are available to Connecticut without the need to "invade the area of protected freedoms." NAACP v. Alabama, supra, at 307. See McLaughlin v. Florida, supra, at 196.

Finally, it should be said of the Court's holding today that it in no way interferes with a State's proper regulation *499 of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his dissenting opinion in Poe v. Ullman, supra,at 553.

"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."

In sum, I believe that the right of privacy in the marital relation is fundamental and basic—a personal right "retained by the people" within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners' convictions must therefore be reversed.

1

 My Brother STEWART dissents on the ground that he "can find no . . . general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court." Post, at 530. He would require a more explicit guarantee than the one which the Court derives from several constitutional amendments. This Court, however, has never held that the Bill of Rights or the Fourteenth Amendment protects only those rights that the Constitution specifically mentions by name. See, e. g., Bolling v. Sharpe, 347 U. S. 497; Aptheker v. Secretary of State, 378 U. S. 500; Kent v. Dulles, 357 U. S. 116; Carrington v. Rash, 380 U. S. 89, 96; Schware v. Board of Bar Examiners, 353 U. S. 232; NAACP v. Alabama, 360 U. S. 240; Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390. To the contrary, this Court, for example, in Bolling v. Sharpe, supra, while recognizing that the Fifth Amendment does not contain the "explicit safeguard" of an equal protection clause, id., at 499, nevertheless derived an equal protection principle from that Amendment's Due Process Clause. And in Schware v. Board of Bar Examiners, supra, the Court held that the Fourteenth Amendment protects from arbitrary state action the right to pursue an occupation, such as the practice of law.

2

 See, e. g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; Gitlow v. New York, supra; Cantwell v. Connecticut, 310 U. S. 296; Wolf v. Colorado, 338 U. S. 25; Robinson v. California, 370 U. S. 660; Gideon v. Wainwright, 372 U. S. 335; Malloy v. Hogan, 378 U. S. 1; Pointer v. Texas, supra; Griffin v. California, 380 U. S. 609.

3

 Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact that "no language is so copious as to supply words and phrases for every complex idea." The Federalist, No. 37 (Cooke ed. 1961), at 236.

4

 Alexander Hamilton was opposed to a bill of rights on the ground that it was unnecessary because the Federal Government was a government of delegated powers and it was not granted the power to intrude upon fundamental personal rights. The Federalist, No. 84 (Cooke ed. 1961), at 578-579. He also argued,

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power." Id., at 579.

The Ninth Amendment and the Tenth Amendment, which provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," were apparently also designed in part to meet the above-quoted argument of Hamilton.

5

 The Tenth Amendment similarly made clear that the States and the people retained all those powers not expressly delegated to the Federal Government.

6

 This Amendment has been referred to as "The Forgotten Ninth Amendment," in a book with that title by Bennett B. Patterson (1955). Other commentary on the Ninth Amendment includes Redlich, Are There "Certain Rights . . . Retained by the People"? 37 N. Y. U. L. Rev. 787 (1962), and Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind. L. J. 309 (1936). As far as I am aware, until today this Court has referred to the Ninth Amendment only in United Public Workers v. Mitchell, 330 U. S. 75, 94-95; Tennessee Electric Power Co. v. TVA, 306 U. S. 118, 143-144; and Ashwander v. TVA, 297 U. S. 288, 330-331. See also Calder v. Bull, 3 Dall. 386, 388; Loan Assn. v. Topeka, 20 Wall. 655, 662-663.

In United Public Workers v. Mitchell, supra, at 94-95, the Court stated: "We accept appellants' contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments [is] involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment."

7

 In light of the tests enunciated in these cases it cannot be said that a judge's responsibility to determine whether a right is basic and fundamental in this sense vests him with unrestricted personal discretion. In fact, a hesitancy to allow too broad a discretion was a substantial reason leading me to conclude in Pointer v. Texas, supra, at 413-414, that those rights absorbed by the Fourteenth Amendment and applied to the States because they are fundamental apply with equal force and to the same extent against both federal and state governments. In Pointer I said that the contrary view would require "this Court to make the extremely subjective and excessively discretionary determination as to whether a practice, forbidden the Federal Government by a fundamental constitutional guarantee, is, as viewed in the factual circumstances surrounding each individual case, sufficiently repugnant to the notion of due process as to be forbidden the States." Id., at 413.

8

 Pointer v. Texas, supra, at 413. See also the discussion of my Brother DOUGLAS. Poe v. Ullman, supra, at 517-518 (dissenting opinion).

MR. JUSTICE HARLAN, concurring in the judgment.

I fully agree with the judgment of reversal, but find myself unable to join the Court's opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.

*500 In other words, what I find implicit in the Court's opinion is that the "incorporation" doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the "incorporation" approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them. See, e. g., my concurring opinions in Pointer v. Texas, 380 U. S. 400, 408, and Griffin v. California, 380 U. S. 609, 615, and my dissenting opinion in Poe v. Ullman, 367 U. S. 497, 522, at pp. 539-545.

In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319, 325. For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

A further observation seems in order respecting the justification of my Brothers BLACK and STEWART for their "incorporation" approach to this case. Their approach does not rest on historical reasons, which are of course wholly lacking (see Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev. 5 (1949)), but on the thesis that by limiting the content of the Due Process Clause of the Fourteenth Amendment to the protection of rights which can be found elsewhere in the Constitution, in this instance in the Bill of Rights, judges will thus be confined to "interpretation" of specific constitutional *501 provisions, and will thereby be restrained from introducing their own notions of constitutional right and wrong into the "vague contours of the Due Process Clause." Rochin v. California, 342 U. S. 165, 170.

While I could not more heartily agree that judicial "self restraint" is an indispensable ingredient of sound constitutional adjudication, I do submit that the formula suggested for achieving it is more hollow than real. "Specific" provisions of the Constitution, no less than "due process," lend themselves as readily to "personal" interpretations by judges whose constitutional outlook is simply to keep the Constitution in supposed "tune with the times" (post, p. 522). Need one go further than to recall last Term's reapportionment cases, Wesberry v. Sanders, 376 U. S. 1. and Reynolds v. Sims, 377 U. S. 533, where a majority of the Court "interpreted" "by the People" (Art. I, § 2) and "equal protection" (Amdt. 14) to command "one person, one vote," an interpretation that was made in the face of irrefutable and still unanswered history to the contrary? See my dissenting opinions in those cases, 376 U. S., at 20; 377 U. S., at 589.

Judicial self-restraint will not, I suggest, be brought about in the "due process" area by the historically unfounded incorporation formula long advanced by my Brother BLACK, and now in part espoused by my Brother STEWART. It will be achieved in this area, as in other constitutional areas, only by continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms. See Adamson v. California, 332 U. S. 46, 59 (Mr. Justice Frankfurter, concurring). Adherence to these principles will not, of course, obviate all constitutional differences of opinion among judges, nor should it. Their continued recognition *502 will, however, go farther toward keeping most judges from roaming at large in the constitutional field than will the interpolation into the Constitution of an artificial and largely illusory restriction on the content of the Due Process Clause.*

*

 Indeed, my Brother BLACK, in arguing his thesis, is forced to lay aside a host of cases in which the Court has recognized fundamental rights in the Fourteenth Amendment without specific reliance upon the Bill of Rights. Post, p. 512, n. 4.

MR. JUSTICE WHITE, concurring in the judgment.

In my view this Connecticut law as applied to married couples deprives them of "liberty" without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut's aiding and abetting statute.

It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right "to marry, establish a home and bring up children," Meyer v. Nebraska, 262 U. S. 390, 399, and "the liberty . . . to direct the upbringing and education of children," Pierce v. Society of Sisters, 268 U. S. 510, 534-535, and that these are among "the basic civil rights of man." Skinner v. Oklahoma, 316 U. S. 535, 541. These decisions affirm that there is a "realm of family life which the state cannot enter" without substantial justification. Prince v. Massachusetts, 321 U. S. 158, 166. Surely the right invoked in this case, to be free of regulation of the intimacies of *503 the marriage relationship, "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements." Kovacs v. Cooper, 336 U. S. 77, 95 (opinion of Frankfurter, J.).

The Connecticut anti-contraceptive statute deals rather substantially with this relationship. For it forbids all married persons the right to use birth-control devices, regardless of whether their use is dictated by considerations of family planning, Trubek v. Ullman, 147 Conn. 633, 165 A. 2d 158, health, or indeed even of life itself. Buxton v. Ullman, 147 Conn. 48, 156 A. 2d 508. The anti-use statute, together with the general aiding and abetting statute, prohibits doctors from affording advice to married persons on proper and effective methods of birth control. Tileston v. Ullman, 129 Conn. 84, 26 A. 2d 582. And the clear effect of these statutes, as enforced, is to deny disadvantaged citizens of Connecticut, those without either adequate knowledge or resources to obtain private counseling, access to medical assistance and up-to-date information in respect to proper methods of birth control. State v. Nelson, 126 Conn. 412, 11 A. 2d 856; State v. Griswold, 151 Conn. 544, 200 A. 2d 479. In my view, a statute with these effects bears a substantial burden of justification when attacked under the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U. S. 356; Skinner v. Oklahoma,316 U. S. 535; Schware v. Board of Bar Examiners, 353 U. S. 232; McLaughlin v. Florida, 379 U. S. 184, 192.

An examination of the justification offered, however, cannot be avoided by saying that the Connecticut anti-use statute invades a protected area of privacy and association or that it demeans the marriage relationship. The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under *504 the cases of this Court, require "strict scrutiny," Skinner v. Oklahoma,316 U. S. 535, 541, and "must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U. S. 479, 488. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." Bates v. Little Rock, 361 U. S. 516, 524. See also McLaughlin v. Florida, 379 U. S. 184. But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U. S. 1.*

*505 As I read the opinions of the Connecticut courts and the argument of Connecticut in this Court, the State claims but one justification for its anti-use statute. Cf. Allied Stores of Ohio v. Bowers, 358 U. S. 522, 530; Martin v. Walton,368 U. S. 25, 28 (DOUGLAS, J., dissenting). There is no serious contention that Connecticut thinks the use of artificial or external methods of contraception immoral or unwise in itself, or that the anti-use statute is founded upon any policy of promoting population expansion. Rather, the statute is said to serve the State's policy against all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal.

Without taking issue with the premise that the fear of conception operates as a deterrent to such relationships in addition to the criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships. See Schware v. Board of Bar Examiners, 353 U. S. 232, 239. Connecticut does not bar the importation or possession of contraceptive devices; they are not considered contraband material under state law, State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863, and their availability in that State is not seriously disputed. The only way Connecticut seeks to limit or control the availability of such devices is through its general aiding and abetting statute whose operation in this context has *506 been quite obviously ineffective and whose most serious use has been against birth-control clinics rendering advice to married, rather than unmarried, persons. Cf. Yick Wo v. Hopkins, 118 U. S. 356. Indeed, after over 80 years of the State's proscription of use, the legality of the sale of such devices to prevent disease has never been expressly passed upon, although it appears that sales have long occurred and have only infrequently been challenged. This "undeviating policy . . . throughout all the long years . . . bespeaks more than prosecutorial paralysis." Poe v. Ullman, 367 U. S. 497, 502. Moreover, it would appear that the sale of contraceptives to prevent disease is plainly legal under Connecticut law.

In these circumstances one is rather hard pressed to explain how the ban on use by married persons in any way prevents use of such devices by persons engaging in illicit sexual relations and thereby contributes to the State's policy against such relationships. Neither the state courts nor the State before the bar of this Court has tendered such an explanation. It is purely fanciful to believe that the broad proscription on use facilitates discovery of use by persons engaging in a prohibited relationship or for some other reason makes such use more unlikely and thus can be supported by any sort of administrative consideration. Perhaps the theory is that the flat ban on use prevents married people from possessing contraceptives and without the ready availability of such devices for use in the marital relationship, there will be no or less temptation to use them in extramarital ones. This reasoning rests on the premise that married people will comply with the ban in regard to their marital relationship, notwithstanding total nonenforcement in this context and apparent nonenforcibility, but will not comply with criminal statutes prohibiting extramarital affairs and the anti-use statute in respect to illicit sexual relationships, a premise whose validity has not been *507 demonstrated and whose intrinsic validity is not very evident. At most the broad ban is of marginal utility to the declared objective. A statute limiting its prohibition on use to persons engaging in the prohibited relationship would serve the end posited by Connecticut in the same way, and with the same effectiveness, or ineffectiveness, as the broad anti-use statute under attack in this case. I find nothing in this record justifying the sweeping scope of this statute, with its telling effect on the freedoms of married persons, and therefore conclude that it deprives such persons of liberty without due process of law.

*

 Dissenting opinions assert that the liberty guaranteed by the Due Process Clause is limited to a guarantee against unduly vague statutes and against procedural unfairness at trial. Under this view the Court is without authority to ascertain whether a challenged statute, or its application, has a permissible purpose and whether the manner of regulation bears a rational or justifying relationship to this purpose. A long line of cases makes very clear that this has not been the view of this Court. Dent v. West Virginia, 129 U. S. 114; Jacobson v. Massachusetts, 197 U. S. 11; Douglas v. Noble, 261 U. S. 165; Meyer v. Nebraska, 262 U. S. 390; Pierce v. Society of Sisters, 268 U. S. 510; Schware v. Board of Bar Examiners, 353 U. S. 232; Aptheker v. Secretary of State, 378 U. S. 500; Zemel v. Rusk, 381 U. S. 1.

The traditional due process test was well articulated, and applied, in Schware v. Board of Bar Examiners, supra, a case which placed no reliance on the specific guarantees of the Bill of Rights.

"A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. Dent v. West Virginia, 129 U. S. 114. Cf. Slochower v. Board of Education, 350 U. S. 551; Wieman v. Updegraff, 344 U. S. 183. And see Ex parte Secombe, 19 How. 9, 13. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Douglas v. Noble, 261 U. S. 165; Cummings v. Missouri, 4 Wall. 277, 319-320. Cf. Nebbia v. New York, 291 U. S. 502. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory." 353 U. S., at 238-239. Cf. Martin v. Walton, 368 U. S. 25, 26 (DOUGLAS, J., dissenting).

MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.

I agree with my Brother STEWART'S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe—except their conclusion that the evil qualities they see in the law make it unconstitutional.

Had the doctor defendant here, or even the nondoctor defendant, been convicted for doing nothing more than expressing opinions to persons coming to the clinic that certain contraceptive devices, medicines or practices would do them good and would be desirable, or for telling people how devices could be used, I can think of no reasons at this time why their expressions of views would not be *508 protected by the First and Fourteenth Amendments, which guarantee freedom of speech. Cf. Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U. S. 1; NAACP v. Button, 371 U. S. 415. But speech is one thing; conduct and physical activities are quite another. See, e. g., Cox v. Louisiana, 379 U. S. 536, 554-555; Cox v. Louisiana, 379 U. S. 559, 563-564; id., 575-584 (concurring opinion); Giboney v. Empire Storage & Ice Co., 336 U. S. 490; cf. Reynolds v. United States,98 U. S. 145, 163-164. The two defendants here were active participants in an organization which gave physical examinations to women, advised them what kind of contraceptive devices or medicines would most likely be satisfactory for them, and then supplied the devices themselves, all for a graduated scale of fees, based on the family income. Thus these defendants admittedly engaged with others in a planned course of conduct to help people violate the Connecticut law. Merely because some speech was used in carrying on that conduct—just as in ordinary life some speech accompanies most kinds of conduct—we are not in my view justified in holding that the First Amendment forbids the State to punish their conduct. Strongly as I desire to protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford protection to the conduct of these defendants in violating the Connecticut law. What would be the constitutional fate of the law if hereafter applied to punish nothing but speech is, as I have said, quite another matter.

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth *509 Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. See e. g., New York Times Co. v. Sullivan, 376 U. S. 254, 293 (concurring opinion); cases collected in City of El Paso v. Simmons, 379 U. S. 497, 517, n. 1 (dissenting opinion); Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865. For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from *510 one or more constitutional provisions.1 I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

This brings me to the arguments made by my Brothers HARLAN, WHITE and GOLDBERG for invalidating the Connecticut law. Brothers HARLAN2 and WHITE would invalidate it by reliance on the Due Process Clause of the Fourteenth Amendment, but Brother GOLDBERG, while agreeing with Brother HARLAN, relies also on the Ninth Amendment. I have no doubt that the Connecticut law could be applied in such a way as to abridge freedom of *511 speech and press and therefore violate the First and Fourteenth Amendments. My disagreement with the Court's opinion holding that there is such a violation here is a narrow one, relating to the application of the First Amendment to the facts and circumstances of this particular case. But my disagreement with Brothers HARLAN, WHITE and GOLDBERG is more basic. I think that if properly construed neither the Due Process Clause nor the Ninth Amendment, nor both together, could under any circumstances be a proper basis for invalidating the Connecticut law. I discuss the due process and Ninth Amendment arguments together because on analysis they turn out to be the same thing—merely using different words to claim for this Court and the federal judiciary power to invalidate any legislative act which the judges find irrational, unreasonable or offensive.

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice."3 If these formulas based on "natural justice," or others which mean the same thing,4 are to prevail, they require judges to determine *512what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous. I readily admit that no legislative body, state or national, should pass laws that can justly be given any *513 of the invidious labels invoked as constitutional excuses to strike down state laws. But perhaps it is not too much to say that no legislative body ever does pass laws without believing that they will accomplish a sane, rational, wise and justifiable purpose. While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct."5 Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination —a power which was specifically denied to federal courts by the convention that framed the Constitution.6

*514 Of the cases on which my Brothers WHITE and GOLDBERG rely so heavily, undoubtedly the reasoning of two of them supports their result here—as would that of a number of others which they do not bother to name, e. g., *514 Lochner v. New York, 198 U. S. 45, Coppage v. Kansas, 236 U. S. 1, Jay Burns Baking Co. v. Bryan, 264 U. S. 504, and Adkins v. Children's Hospital, 261 U. S. 525. The two they do cite and quote from, Meyer v. Nebraska, 262 U. S. 390, and Pierce v. Society of Sisters, 268 U. S. 510, were both decided in opinions by Mr. Justice McReynolds which elaborated the same natural law due process philosophy found in Lochner v. New York, supra, one of the cases on which he relied in Meyer, along with such other long-discredited decisions as, e. g., Adams v. Tanner, 244 U. S. 590, and Adkins v. Children's Hospital, supra. Meyer held unconstitutional, as an "arbitrary" and unreasonable interference with the right of a teacher to carry on his occupation and of parents to hire him, a *514 state law forbidding the teaching of modern foreign languages to young children in the schools.7 And in Pierce,relying principally on Meyer, Mr. Justice McReynolds said that a state law requiring that all children attend public schools interfered unconstitutionally with the property rights of private school corporations because it was an "arbitrary, unreasonable and unlawful interference" which threatened "destruction of their business and property." 268 U. S., at 536. Without expressing an opinion as to whether either of those cases reached a correct result in light of our later decisions applying the First Amendment to the State through the Fourteenth,8 I merely point out that the reasoning stated in Meyer and Pierce was the same natural law due process philosophy which many later opinions repudiated, and which I cannot accept. Brothers WHITE and GOLDBERG also cite other cases, such as NAACP v. Button, 371 U. S. 415, Shelton v. Tucker, 364 U. S. 479, and Schneider v. State,308 U. S. 147, which held that States in regulating conduct could not, consistently with the First Amendment as applied to them by the Fourteenth, pass unnecessarily broad laws which might indirectly infringe on First Amendment freedoms.9 See Brotherhood of Railroad Trainmen v. Virginia ex rel. *517 Virginia State Bar, 377 U. S. 1, 7-8.10 Brothers WHITE and GOLDBERG now apparently would start from this requirement that laws be narrowly drafted so as not to curtail free speech and assembly, and extend it limitlessly to require States to justify any law restricting "liberty" as my Brethren define "liberty." This would mean at the *518very least, I suppose, that every state criminal statute— since it must inevitably curtail "liberty" to some extent— would be suspect, and would have to be justified to this Court.11

My Brother GOLDBERG has adopted the recent discovery12 that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks *519 violates "fundamental principles of liberty and justice," or is contrary to the "traditions and [collective] conscience of our people." He also states, without proof satisfactory to me, that in making decisions on this basis judges will not consider "their personal and private notions." One may ask how they can avoid considering them. Our Court certainly has no machinery with which to take a Gallup Poll.13 And the scientific miracles of this age have not yet produced a gadget which the Court can use to determine what traditions are rooted in the "[collective] conscience of our people." Moreover, one would certainly have to look far beyond the language of the Ninth Amendment14 to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine. The whole history of the adoption of the Constitution and Bill of Rights points the other way, and the very material quoted by my Bother GOLDBERG shows that the Ninth Amendment was intended to protect against the idea that "by enumerating particular exceptions to the grant of power" to the Federal Government, "those rights which were not singled out, were intended to be assigned into the hands of the General Government [the United States], and were consequently *520 insecure."15 That Amendment was passed, not to broaden the powers of this Court or any other department of "the General Government," but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the "[collective] conscience of our people" is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court's members a day-to-day constitutional convention.

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision *521 of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.16

*522 I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an "arbitrary and capricious" or "shocking to the conscience" formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e. g., Lochner v. New York,198 U. S. 45. That formula, based on subjective considerations of "natural justice," is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all in cases like West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U. S. 236, and many other *523 opinions.17 See also Lochner v. New York, 198 U. S. 45, 74 (Holmes, J., dissenting).