Sovereignty and Freedom Page, Section 4: Equality and Equal Protection: Foundation of All Your Freedom
Subject Index Page, Section 32: Equal Proection
Foundations of Freedom Course, Form #12.021, Video 1: Introduction (OFFSITE LINK)-Equality as the foundation of all your freedom
Requirement for Equal Protection and Equal Treatment, Form #05.033
(OFFSITE LINK)-SEDM
Forms Page
The Truth About Equality: Outcome vs. Opportunity (OFFSITE LINK) -Stefan Molyneux
Boyd v. U.S., 116 U.S. 616, 630, 635
“. . . The principles laid down in this opinion 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 employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, 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. . . “
[. . .]
“. . . it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.. .”
Alan Keyes, "As a Self Governing Nation, Will We Commit Suicide?", World Net Daily
"The people of the United States were the first to establish their self-government on the premise that fear of God, made manifest the by the proven commitment to do right, according to His will, fits "the lowly" to occupy the throne of power once exclusively claimed as the exclusive prerogative of conquering, wealthy, or otherwise manifestly better-endowed rulers. Under the premises upheld in the Declaration of Independence, the responsibility to do right, equally endowed to all, becomes the basis for the equality of right for all who prove willing to undertake it."
[Alan Keyes, "As a Self Governing Nation, Will We Commit Suicide?", World Net Daily]
U.S. Constitution, Article 4, Section 2, Clause 1:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Fourteenth Amendment, Section 1, Clause 2:
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.
42 U.S.C. §1981: Equal Rights under the Law
TITLE 42 > CHAPTER 21 > SUBCHAPTER I > Sec. 1981.
Sec. 1981. - Equal rights under the law
(a) Statement of equal rights
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, shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
[IMPORTANT EDITORIAL: This statute TECHNICALLY produces INEQUALITY and turns JUSTICE into a legislative PRIVILEGE. Whenever you turn justice into a revocable privilege, it becomes INJUSTICE, as is pointed out in Form #05.050, Section 5.3. It produces INEQUALITY between the governed and the governors because:
- The government is the enforcer and you are not.
- You can’t make your OWN rules for your own property to enforce against the government under the statute as the government does to you, because the statute doesn’t recognize that authority. Equality demands the same rights of ALL parties on both sides.
- You are presumed to CONSENT to the statutes when invoking the status that implements the benefit you seek. Anything you consent to cannot form the basis for an injury under the common law. Thus, you can NEVER sue the government for any part of the statutes you claim the “benefit” of. Thus, you have waived your sovereignty and sovereign immunity to pursue a “benefit”/property. They, however, can sue YOU for refusing to follow the statute as a precondition of receiving its “benefit”. Is that "fair"?
“Volunti non fit injuria.
He who consents cannot receive an injury. 2 Bouv. Inst. n. 2279, 2327; 4 T. R. 657; Shelf. on mar. & Div. 449.Consensus tollit errorem.
Consent removes or obviates a mistake. Co. Litt. 126.Melius est omnia mala pati quam malo concentire.
It is better to suffer every wrong or ill, than to consent to it. 3 Co. Inst. 23.Nemo videtur fraudare eos qui sciunt, et consentiunt.
One cannot complain of having been deceived when he knew the fact and gave his consent. Dig. 50, 17, 145.”
[Bouvier’s Maxims of Law, 1856;
SOURCE: http://famguardian.org/Publications/BouvierMaximsOfLaw/BouviersMaxims.htm]
The above is why we put the following warning on the opening page of our website:
“People of all races, genders, political beliefs, sexual orientations, and nearly all religions are welcome here. All are treated equally under REAL “law”. The only way to remain truly free and equal under the civil law is to avoid seeking government civil services, benefits, property, special or civil status, exemptions, privileges, or special treatment. All such pursuits of government services or property require individual and lawful consent to a franchise and the surrender of inalienable constitutional rights AND EQUALITY in the process, and should therefore be AVOIDED. The rights and equality given up are the “cost” of procuring the “benefit” or property from the government, in fact. Nothing in life is truly “free”. Anyone who claims that such “benefits” or property should be free and cost them nothing is a thief who wants to use the government as a means to STEAL on his or her behalf. All just rights spring from responsibilities/obligations under the laws of a higher power. If that higher power is God, you can be truly and objectively free. If it is government, you are guaranteed to be a slave because they can lawfully set the cost of their property as high as they want as a Merchant under the U.C.C. If you want it really bad from people with a monopoly, then you will get it REALLY bad. Bend over. There are NO constitutional limits on the price government can charge for their monopoly services or property. Those who want no responsibilities can have no real/PRIVATE rights, but only privileges dispensed to wards of the state which are disguised to LOOK like unalienable rights. Obligations and rights are two sides of the same coin, just like self-ownership and personal responsibility. For the biblical version of this paragraph, read 1 Sam. 8:10-22. For the reason God answered Samuel by telling him to allow the people to have a king, read Deut. 28:43-51, which is God’s curse upon those who allow a king above them. Click Here for a detailed description of the legal, moral, and spiritual consequences of violating this paragraph.”
[Family Guardian Opening Page; http://famguardian.org/]
The key word in the above statute is "benefit". The PRIVILEGES attached to the civil status of "person" and enforced by the courts is the BENEFIT afforded those who claim the status. Anyone who accepts ANY benefit based on adopting such a status waives ALL constitutional rights and all NATURAL rights. This is explained in the Brandeis Rules documented below:
"The Court 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. They are:
[. . .]
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.FN7 Great Falls Mfg. Co. v. Attorney General, 124 U.S. 581, 8 S.Ct. 631, 31 L.Ed. 527; Wall v. Parrot Silver & Copper Co., 244 U.S. 407, 411, 412, 37 S.Ct. 609, 61 L.Ed. 1229; St. Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U.S. 469, 43 S.Ct. 178, 67 L.Ed. 351.
FN7 Compare Electric Co. v. Dow, 166 U.S. 489, 17 S.Ct. 645, 41 L.Ed. 1088; Pierce v. Somerset Ry., 171 U.S. 641, 648, 19 S.Ct. 64, 43 L.Ed. 316; Leonard v. Vicksburg, etc., R. Co., 198 U.S. 416, 422, 25 S.Ct. 750, 49 L.Ed. 1108.
[Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466 (1936)]
The "taxes, licenses, and exactions" mentioned in the statute are examples of CIVIL STATUTORY OBLIGATIONS that TAKE AWAY CONSTITUTIONAL or NATURAL PRIVATE RIGHTS. Such civil statutory obligations cannot be imposed involuntarily, or else slavery in violation of the Thirteenth Amendment and an unconstitutional Fifth Amendment taking would result. Thus, the STATUTORY "equality" mentioned above is equality of TREATMENT in ENFORCING PRIVILEGES or "benefits" against those who have VOLUNTARILY accepted them. ABSOLUTELY OWNED, CONSTITUTIONALLY protected PRIVATE rights CANNOT be taken away by imposing "taxes, license, and exactions" without the express consent of the original PRIVATE owner. That consent (Form #05.003) is usually impliedly or tacitly expressed by claiming the "benefits" of a specific FICTIONAL civil statutory status, such as "person", "citizen", or "resident". The courts will NEVER admit this, because it is the source of ALL of their unjust statutory power over you. You have to KNOW it. By refusing to discuss this CRUCIAL "third rail issue", this legislation and the courts which enforce it are in effect making your consent to be CIVILLY "governed" essentially invisible, so that you can never find out how you gave your consent or expressly revoke it. This devious process is called “tacit procuration” or “sub silentio”.
“SUB SILENTIO. Under silence; without any notice being taken. Passing a thing sub silentio may be evidence of consent”
[Black’s Law Dictionary, Fourth Edition, p. 1593]“Qui tacet consentire videtur.
He who is silent appears to consent. Jenk. Cent. 32.”
[Bouvier’s Maxims of Law, 1856;
SOURCE: http://famguardian.org/Publications/BouvierMaximsOfLaw/BouviersMaxims.htm]_________________________
“Procuration.. Agency; proxy; the act of constituting another one's attorney in fact. The act by which one person gives power to another to act in his place, as he could do himself. Action under a power of attorney or other constitution of agency. Indorsing a bill or note "by procuration" is doing it as proxy for another or by his authority. The use of the word procuration (usually, per procuratione, or abbreviated to per proc. or p. p.) on a promissory note by an agent is notice that the agent has but a limited authority to sign.
An express procuration is one made by the express consent of the parties. An implied or tacit procuration takes place when an individual sees another managing his affairs and does not interfere to prevent it. Procurations are also divided into those which contain absolute power, or a general authority, and those which give only a limited power. Also, the act or offence of procuring women for lewd purposes. See also Proctor.”
[Black’s Law Dictionary, Fifth Edition, pp. 1086-1087]
The U.S. Supreme Court describes this "tacit procuration" or "sub silentio" as follows:
“The State in such cases exercises no greater right than an individual may exercise over the use of his own property when leased or loaned to others. The conditions upon which the privilege shall be enjoyed being stated or implied in the legislation authorizing its grant, no right is, of course, impaired by their enforcement. The recipient of the privilege, in effect, stipulates to comply with the conditions. It matters not how limited the privilege conferred, its acceptance implies an assent to the regulation of its use and the compensation for it.”
[Munn v. Illinois, 94 U.S. 113 (1876) ]
Notice the phrase "of course". They use this phrase so that they don't have to explain or address the method of consent further. It is their “dirty little secret” that they can’t elaborate on because it is the source of ALL of their unjust authority. They just ASSUME/PRESUME it exists. For more on "invisible consent", see:
Requirement for Consent, Form #05.003, Section 9.4 (OFFSITE LINK) -SEDM
The term "all laws" above means CIVIL STATUTORY privileges/benefits mentioned in 5 U.S.C. §553(a)(2) that are NOT, in fact "law" as legally defined, but revocable privileges which must be voluntarily accepted to become the lawful target of ENFORCEMENT activity. For proof, see:
What is "law"? (important!) (OFFSITE LINK), SEDM
This statute is a SUBSTITUTE for the equal protection clauses of the constitution that applies ONLY to CIVIL STATUTORY "persons" domiciled (Form #05.002) on federal territory within the exclusive jurisdiction of Congress as required by Federal Rule of Civil Procedure 17(b). Those NOT so domiciled are beyond the reach of the CIVIL jurisdiction of the federal courts and have no "capacity to sue or be sued" under the federal civil statutes, but retain their standing under the constitution. This is because the Constitution does not limit or control what happens on federal territory, except possibly the Thirteenth Amendment, which applies everywhere IN THE COUNTRY. This statute implements CIVIL STATUTORY PUBLIC PRIVILEGES (Form #05.037) that can be taken away without your consent, not ABSOLUTELY OWNED PRIVATE RIGHTS that cannot be taken away. The "persons" they refer to are fictional civil statutory "persons", not CONSTITUTIONAL "persons". All constitutional "persons" are HUMAN BEINGS and not Congressionally created "fictions of law" (Form #05.042), also called "straw men". The rights spoken of attach to the fictional civil statutory status (Form #13.008) OF "person" not to human beings standing on land as the CONSTITUTION does. "Within the jurisdiction" means domiciled (Form #05.002) on federal territory. Domicile (Form #05.002) is a civil statutory protection franchise or privilege, not a PRIVATE right. "Within the jurisdiction" above does NOT refer to people physically within the boundaries of the COUNTRY "United States OF AMERICA" mentioned in the Articles of Confederation. The constitution is "self-executing" and needs no civil statutes such as this one to enforce or to define the extent of enforcement.
"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."
[City of Boerne v. Flores, 521 U.S. 507 (1997)]
Thus, CONSTITUTIONAL "persons" do not need civil statutes or the civil statuses they attach the privilege to such as the above to be entitled to protection of PRIVATE RIGHTS that are NOT statutory privileges within any court. This statute is therefore a devious attempt to deceive the reader into exchanging your PRIVATE CONSTITUTIONAL RIGHTS for REVOCABLE STATUTORY PUBLIC PRIVILEGES. Don't go for it! As a practical matter, the reader must always be aware that YOU CANNOT BE A CONSTITUTIONAL PERSON AND A STATUTORY PERSON under federal law at the SAME time! They are mutually exclusive and non-overlapping. This is the main implication of City of Boerne above and the Brandeis Rules, in fact. Thus, they are using EQUIVOCATION between the STATUTORY and CONSTITUTIONAL contexts for "person" to deceive the reader into thinking they are equivalent. For more on "equivocation" as a tool of tyranny and deception, see:
Legal Deception, Propaganda, and Fraud, Form #05.014, Section 16.1 (OFFSITE LINK) -SEDM
Some federal courts have INCORRECTLY interpreted this statute as an attempt to IMPLEMENT the Fourteenth Amendment's "necessary and proper" clause, clause 5, which says "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.", but this is simply not what it does, as explained in City of Boerne above. For an example of this MISINTERPRETATION of the purpose of this amendment, see the following, which deals with a closely related statute to this one:
Section 1983 Litigation, Litigation Tool #08.008, SEDM
Rosenstock's Section 1983 Civil Rights Digest, Litigation Tool #08.009]
U.S. v. Cruikshank, 92 U.S. 542, 1875 WL 17550 (U.S.,1875)
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 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.
[U.S. v. Cruikshank, 92 U.S. 542, 1875 WL 17550 (U.S.,1875)]
Great IRS Hoax, section 4.4.4: Equal Protection
Gulf, C. & S.F.R. Co. v. Ellis, 165 U.S. 150 (1897):
"But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this. No language is more worthy of frequent and thoughtful consideration than these words of Mr. Justice Matthews, speaking for this court, in Yick Wo v. Hopkins, 118 U.S. 356, 369 , 6 S. Sup. Ct. 1064, 1071: 'When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.' The first official action of this nation declared the foundation of government in these words: 'We hold these truths to be self-evident, [165 U.S. 150, 160] that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.' While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government."
[Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 150 (1897)]
Paul v. Virginia, 75 U.S. 168 (1868):
'It was undoubtedly the object of the clause [Article 4, Section 2 Clause 1 of the Constitution] in question to place the citizens of each state upon the same footing with citizens of other states, so far as the advantages resulting from citizenship in those states are concerned. It relieves them from the disabilities of alienage in other states; it inhibits discriminating legislation against them by other states; it gives them the right of free ingress into other states, and egress from them; it insures to them in other states the same freedom possessed by the citizens of those states in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures them in other estates the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.
'Indeed, without some provision of the kind removing from the citizens of each state the disabilities of alienage in the other states, and giving them equality of privilege with citizens of those states, the republic would have constituted little more than a league of states; it would not have constituted the Union which now exists.'
Matthews v. Diaz, 426 U.S. 67 (1976)
[ Footnote 12 ] The Constitution protects the privileges and immunities only of citizens, Amdt. 14, 1; see Art. IV, 2, cl. 1, and the right to vote only of citizens. Amdts. 15, 19, 24, 26. It requires that Representatives have been citizens for seven years, Art. I, 2, cl. 2, and Senators citizens for nine, Art. I, 3, cl. 3, and that the President be a "natural born Citizen." Art. II, 1, cl. 5.
A multitude of federal statutes distinguish between citizens and aliens. The whole of Title 8 of the United States Code, regulating aliens and nationality, is founded on the legitimacy of distinguishing between citizens and aliens. A variety of other federal statutes provide for disparate treatment of aliens and citizens. These include prohibitions and restrictions upon Government employment of aliens, e. g., 10 U.S.C. 5571; 22 U.S.C. 1044 (e), upon private employment of aliens, e. g., 10 U.S.C. 2279; 12 U.S.C. 72, and upon investments and businesses of aliens, e. g., 12 U.S.C. 619; 47 U.S.C. 17; statutes excluding aliens from benefits available to citizens, e. g., 26 U.S.C. 931 (1970 ed. Supp. IV); 46 U.S.C. 1171 (a), and from protections extended to citizens, e. g., 19 U.S.C. 1526; 29 U.S.C. 633a (1970 ed., Supp. IV); and statutes imposing added burdens upon aliens, e. g., 26 U.S.C. 6851 (d); 28 U.S.C. 1391 (d). Several statutes treat certain aliens more favorably than citizens. E. g., 19 U.S.C. 1586 (e); 50 U.S.C. App. 453 (1970 ed., Supp. IV). Other statutes, similar to the one at issue in this case, provide for equal treatment of citizens and aliens lawfully admitted for permanent residence. 10 U.S.C. 8253; 18 U.S.C. 613 (2) (1970 ed., Supp. IV). Still others equate citizens and aliens who have declared their intention to become citizens. E. g., 43 U.S.C. 161; 30 U.S.C. 22. Yet others condition equal treatment of an alien upon reciprocal treatment [426 U.S. 67, 79] of United States citizens by the alien's own country. E. g., 10 U.S.C. 7435 (a); 28 U.S.C. 2502.
Romer v. Evans, 517 U.S. 620 (1996)
The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 271-272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., Heller v. Doe, 509 U. S. 312, 319-320 (1993).
632*632 Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.
Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New Orleans v. Dukes, 427 U. S. 297 (1976) (tourism benefits justified classification favoring pushcart vendors of certain longevity); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949) (potential traffic hazards justified exemption of vehicles advertising the owner's products from general advertising ban); Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U. S. 552 (1947) (licensing scheme that disfavored persons unrelated to current river boat pilots justified by possible efficiency and safety benefits of a closely knit pilotage system). The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to 633*633 ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 181 (1980) (Stevens, J., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect").
Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37-38 (1928).
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' " Sweatt v. Painter, 339 U. S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U. S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws 634*634 is a pledge of the protection of equal laws.' " Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886)).
Davis v. Beason, 133 U. S. 333 (1890), not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." Id., at 347. To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. Dunn v. Blumstein, 405 U. S. 330, 337 (1972); cf. United States v. Brown, 381 U. S. 437 (1965); United States v. Robel, 389 U. S. 258 (1967). To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See Richardson v. Ramirez, 418 U. S. 24 (1974).
A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U. S. 528, 534 635*635 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U. S. 450, 462 (1988), and Amendment 2 does not.
The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U. S., at 24.
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, 636*636 and the judgment of the Supreme Court of Colorado is affirmed.
It is so ordered.
Slaughterhouse Cases, 83 U.S. 36 (1872):
'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 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
"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.' [254 U.S. 281, 297] '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. State of Maryland, 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 are 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.'
Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (2003)
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); see also Plyler v. Doe, 457 U.S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973); Romer v. Evans, 517 U.S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U.S. 1, 11-12 (1992).
Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. ___; Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.
[. . .]
The Equal Protection Clause "'neither knows nor tolerates classes among citizens.'" Id. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
[Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (2003)]
Zobel v. Williams, 457 U.S. 55 (1982)
The Fourteenth Amendment guarantees the equal protection of the law to anyone who may be within the territorial jurisdiction of a State. That Amendment does not suggest by its terms that equal treatment might be denied a person depending upon how long that person has been within the jurisdiction of the State. The Fourteenth Amendment does, however, expressly recognize one elementary basis for distinguishing between persons who may be within a State's jurisdiction at any particular time -- by setting forth the requirements for state citizenship. But it is significant that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship only with simple residence.{2} That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence.{3} And the Equal Protection Clause would not tolerate such distinctions. [457 U.S. 70] In short, as much as the right to travel, equality of citizenship is of the essence in our Republic. As the Court notes, States may not "divide citizens into expanding numbers of permanent classes." Ante at 64.
It is, of course, elementary that the Constitution does not bar the States from making reasoned distinctions between citizens: insofar as those distinctions are rationally related to the legitimate ends of the State, they present no constitutional difficulty, as our equal protection jurisprudence attests. But we have never suggested that duration of residence vel non provides a valid justification for discrimination. To the contrary, discrimination on the basis of residence must be supported by a valid state interest independent of the discrimination itself. To be sure, allegiance and attachment may be rationally measured by length of residence -- length of residence may, for example, be used to test the bona fides of citizenship -- and allegiance and attachment may bear some rational relationship to a very limited number of legitimate state purposes. Cf. Chimento v. Stark, 353 F.Supp. 1211 (NH), summarily aff'd, 414 U.S. 802 (1973) (7-year citizenship requirement to run for Governor); U.S.Const., Art. I, § 2, cl. 2, § 3, cl. 3; Art. II, § 1, cl. 5. But those instances in which length of residence could provide a legitimate basis for distinguishing one citizen from another are rare.
[Zobel v. Williams, 457 U.S. 55 (1982)]
Great American Fed. Savings and Loan Assoc. v. Novotny, 442 U.S. 366 (1979)
Some privileges and immunities of citizenship, such as the right to engage in interstate travel and the right to be free of the badges of slavery, are protected by the Constitution against interference by private action, as well as impairment by state action. Private conspiracies to deprive individuals of these rights are, as this Court held in Griffin v. Breckenridge, 403 U.S. 88, actionable under § 1985(3) without regard to any state involvement.{4} [442 U.S. 384]
Other privileges and immunities of citizenship such as the right to due process of law and the right to the equal protection of the laws are protected by the Constitution only against state action. Shelley v. Kraemer, 334 U.S. 1, 13. If a state agency arbitrarily refuses to serve a class of persons -- Chinese-Americans, for example, see Yick Wo v. Hopkins, 118 U.S. 356 -- it violates the Fourteenth Amendment. Or if private persons take conspiratorial action that prevents or hinders the constituted authorities of any State from giving or securing equal treatment, the private persons would cause those authorities to violate the Fourteenth Amendment; the private persons would then have violated § 1985(3).{5}
If, however, private persons engage in purely private acts of discrimination -- for example, if they discriminate against women or against lawyers with a criminal practice, see Dombrowski v. Dowling, 459 F.2d 190, 194-196 -- they do not violate the Equal Protection Clause of the Fourteenth Amendment.{6} The rights secured by the Equal Protection and Due Process Clauses of the Fourteenth Amendment are rights to protection against unequal or unfair treatment by the State, not by private parties. Thus, while § 1985(3) does not require that a defendant act under color of state law, there still [442 U.S. 385] can be no claim for relief based on a violation of the Fourteenth Amendment if there has been no involvement by the State. The requirement of state action, in this context, is no more than a requirement that there be a constitutional violation.
Here, there is no claim of such a violation. Private discrimination on the basis of sex is not prohibited by the Constitution. The right to be free of sex discrimination by other private parties is a statutory right that was created almost a century after § 1985(3) was enacted. Because I do not believe that statute was intended to provide a remedy for the violation of statutory rights -- let alone rights created by statutes that had not yet been enacted -- I agree with the Court's conclusion that it does not provide respondent with redress for injuries caused by private conspiracies to discriminate on the basis of sex.{7}
With this additional explanation of my views, I join the Court's opinion.
Missouri v. Lewis, 101 U.S. 22 (1879)
By the Constitution and laws of Missouri, an appeal lies to the supreme court of that state from any final judgment or decree of any circuit court, except those in the Counties of Saint Charles, Lincoln, Warren, and Saint Louis, and the City of Saint Louis, for which counties and city the Constitution of 1875 establishes a separate court of appeal, called the Saint Louis Court of Appeals, and gives to said court exclusive jurisdiction of all appeals from, and writs of error to, the circuit courts of those counties and of said city; and from this court (the Saint Louis Court of Appeals) an appeal lies to the Supreme Court only in cases where the amount in dispute, exclusive of costs, exceeds the sum of $2,500, and in cases involving the construction of the Constitution of the United States or of Missouri, and in some other cases of special character which are enumerated. No appeal is given to the Supreme Court in a case like the present arising in the counties referred to, or in the City of Saint Louis, but a similar case arising in the circuit courts of any other county would be appealable directly to the Supreme Court.
The plaintiff in error contends that this feature of the judicial system of Missouri is in conflict with the Fourteenth Amendment of the Constitution of the United States because it denies to suitors in the courts of Saint Louis and the counties named the equal protection of the laws in that it denies to them the right of appeal to the Supreme Court of Missouri in cases where it gives that right to suitors in the courts of the other counties of the state.
If this position is correct, the Fourteenth Amendment has a much more far-reaching effect than has been supposed. It would render invalid all limitations of jurisdiction based on the amount or character of the demand. A party having a claim for only five dollars could with equal propriety complain that he is deprived of a right enjoyed by other citizens, because he cannot prosecute it in the superior courts, and another might equally complain that he cannot bring a suit for real estate in a justice's court, where the expense is small and the proceedings are expeditious. There is no difference in principle between such discriminations as these in the jurisdictions [101 U.S. 30] of courts and that which the plaintiff in error complains of in the present case.
If, however, we take into view the general objects and purposes of the Fourteenth Amendment, we shall find no reasonable ground for giving it any such application. These are to extend United States citizenship to all natives and naturalized persons and to prohibit the states from abridging their privileges or immunities and from depriving any person of life, liberty, or property without due process of law and from denying to any person within their jurisdiction the equal protection of the laws. It contemplates persons and classes of persons. It has not respect to local and municipal regulations that do not injuriously affect or discriminate between persons or classes of persons within the places or municipalities for which such regulations are made. The amendment could never have been intended to prevent a state from arranging and parceling out the jurisdiction of its several courts at its discretion. No such restriction as this could have been in view or could have been included in the prohibition that "no state shall deny to any person within its jurisdiction the equal protection of the laws." It is the right of every state to establish such courts as it sees fit and to prescribe their several jurisdictions as to territorial extent, subject matter, and amount, and the finality and effect of their decisions, provided it does not encroach upon the proper jurisdiction of the United States and does not abridge the privileges and immunities of citizens of the United States, and does not deprive any person of his rights without due process of law nor deny to any person the equal protection of the laws, including the equal right to resort to the appropriate courts for redress. The last restriction, as to the equal protection of the laws, is not violated by any diversity in the jurisdiction of the several courts as to subject matter, amount, or finality of decision if all persons within the territorial limits of their respective jurisdictions have an equal right, in like cases and under like circumstances, to resort to them for redress. Each state has the right to make political subdivisions of its territory for municipal purposes, and to regulate their local government. As respects the administration of justice, it may establish one system of courts for cities and another for rural districts, one [101 U.S. 31] system for one portion of its territory and another system for another portion. Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a state to regulate its internal affairs to deny to it this right. We think it is not denied or taken away by any thing in the Constitution of the United States, including the amendments thereto.
We might go still further and say with undoubted truth that there is nothing in the Constitution to prevent any state from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the state, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the Fourteenth Amendment, be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the state should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.
The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line, there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several states without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same state. A uniformity which is not essential as regards different states cannot be essential as regards different parts of a state, provided that in each and all there is no infraction of the constitutional provision. Diversities [101 U.S. 32] which are allowable in different states are allowable in different parts of the same state. Where part of a state is thickly settled and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions -- trial by jury in one, for example, and not in the other. Large cities may require a multiplication of courts and a peculiar arrangement of jurisdictions. It would be an unfortunate restriction of the powers of the state government if it could not, in its discretion, provide for these various exigencies.
If a Mexican state should be acquired by treaty and added to an adjoining state or part of a state in the United States, and the two should be erected into a new state, it cannot be doubted that such new state might allow the Mexican laws and judicature to continue unchanged in the one portion and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the Fourteenth Amendment. It would not be based on any respect of persons or classes, but on municipal considerations alone, and a regard to the welfare of all classes within the particular territory or jurisdiction.
It is not impossible that a distinct territorial establishment and jurisdiction might be intended as, or might have the effect of, a discrimination against a particular race or class, where such race or class should happen to be the principal occupants of the disfavored district. Should such a case ever arise, it will be time enough then to consider it. No such case is pretended to exist in the present instance.
[Missouri v. Lewis, 101 U.S. 22 (1879)]
Adamson v. California, 332 U.S. 46 (1947)
There is no basis in the California law for appellant's objection on due process or other grounds that the statutory authorization to comment on the failure to explain or deny adverse testimony shifts the burden of proof or the duty to go forward with the evidence. Failure of the accused to testify is not an admission of the truth of the adverse evidence. Instructions told the jury that the burden of proof remained upon the state and the presumption of innocence with the accused. Comment on failure to deny proven facts does not, in California, tend to supply any missing element of proof of guilt. People v. Adamson, 27 Cal.2d 478, 489-95, 165 P.2d 3, 9-12. It only directs attention to the strength of the evidence for the prosecution or to the weakness of that for the defense. The Supreme Court of California called attention to the fact that the prosecutor's argument approached the borderline in a statement that might have been construed as asserting "that the jury should infer guilt solely from defendant's silence." That court felt that it was improbable the jury was misled into such an understanding of their power. We shall not interfere with such a conclusion. People v. Adamson, 27 Cal.2d 478, 494 95, 165 P.2d 3, 12.
[Adamson v. California, 332 U.S. 46 (1947)]
Stanley v. Illinois, 405 U.S. 645 (1972)
The Court's method of analysis seems to ignore the strictures of JUSTICES DOUGLAS and WHITE, but the analysis is clear: the Court holds sua sponte that the Due Process Clause requires that Stanley, the unwed biological father, be accorded a hearing as to his fitness as a parent before his children are declared wards of the state court; the Court then reasons that, since Illinois recognizes such rights to due process in married fathers, it is required by the Equal Protection Clause to give such protection to unmarried fathers. This "method of analysis" is, of course, no more or less than the use of the Equal Protection Clause as a shorthand condensation of the entire Constitution: a State may not deny any constitutional right to some of its citizens without violating the Equal Protection Clause through its failure to deny such rights to all of its citizens. The limits on this Court's jurisdiction are not properly expandable by the use of such semantic devices as that. [405 U.S. 661]
[Stanley v. Illinois, 405 U.S. 645 (1972)]
Raffel v. United States, 271 U.S. 494 (1926)
The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. [271 U.S. 497] Reagan v. United States, 157 U.S. 301; Fitzpatrick v. United States, 178 U.S. 304; Powers v. United States, 223 U.S. 303; Caminetti v. United States, 242 U.S. 470; Gordon v. United States, 254 F. 53; Austin v. United States, 4 F.(2) 774. When he takes the stand in his own behalf, he does so as any other witness, and, within the limits of the appropriate rules, he may be cross-examined as to the facts in issue. Reagan v. United States, supra, 305; Fitzpatrick v. United States, supra; Tucker v. United States, 5 F.2d 818. He may be examined for the purpose of impeaching his credibility. Reagan v. United States, supra, 305; Fitzpatrick v. United States, supra, 316. His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge may be the basis of adverse inference, and the jury may be so instructed. Caminetti v. United States, supra. His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.
If, therefore, the question asked of the defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions unless there is some reason of policy in the law of evidence which requires their exclusion.
We may concede, without deciding, that if the defendant had not taken the stand on the second trial, evidence that he had claimed the same immunity on the first trial would be probative of no fact in issue, and would be inadmissible. See Maloney v. State, 91 Ark. 485, 491; Loewenherz v. Merchants' Bank, 144 Ga. 556; Bunckley v. State, 77 Miss. 540; People v. Willett, 92 N.Y. 29; but see People v. Prevost, supra.
Making this concession, and laying aside for the moment any question whether the defendant, notwithstanding his offering himself as a witness, retained some vestige of his immunity, we do not think the questions asked of him [271 U.S. 498] were irrelevant or incompetent; for, if the cross-examination had revealed that the real reason for the defendant's failure to contradict the government's testimony on the first trial was a lack of faith in the truth or probability of his own story, his answers would have a bearing on his credibility and on the truth of his own testimony in chief.
It is elementary that a witness who, upon direct examination, denies making statements relevant to the issue may be cross-examined with respect to conduct on his part inconsistent with this denial. The value of such testimony, as is always the case with cross-examination, must depend upon the nature of the answers elicited, and their weight is for the jury. But we cannot say that such questions are improper cross-examination, although the trial judge might appropriately instruct the jury that the failure of the defendant to take the stand in his own behalf is not, in itself, to be taken as an admission of the truth of the testimony which he did not deny.
There can be no basis, then, for excluding the testimony objected to unless it be on the theory that, under the peculiar circumstances of the case, the defendant's immunity should be held to survive his appearance as a witness on the second trial to the extent. at least, that he may be permitted to preserve silence as to his conduct on the first.
Whether there should be such a qualification of the rule that the accused waives his privilege completely by becoming a witness must necessarily depend upon the reasons underlying the policy of the immunity, and one's view as to whether it should be extended. The only suggested basis for such a qualification is that the adoption of the rule contended for by the government might operate to bring pressure on the accused to take the stand on the first trial, for fear of the consequences of his silence in the event of a second trial, and might influence the defendant to continue his silence on the second trial, because [271 U.S. 499] his first silence may there be made to count against him. See People v. Prevost, supra, 247; 36 Harvard Law Rev. 207, 208.But these refinements are without real substance. We need not close our eyes to the fact that every person accused of crime is under some pressure to testify lest the jury, despite carefully framed instructions, draw an unfavorable inference from his silence. See State v. Bartlett, 55 Me. 200, 219; State v. Cleaves, 59 Me. 298, 300. When he does take the stand, he is under the same pressure: to testify fully rather than avail himself of a partial immunity. And the accused at the second trial may well doubt whether the advantage lies with partial silence or with complete silence. Even if, on his first trial, he were to weigh the consequences of his failure to testify then, in the light of what might occur on a second trial, it would require delicate balances to enable him to say that the rule of partial immunity would make his burden less onerous than the rule that he may remain silent or, at his option, testify fully, explaining his previous silence. We are unable to see that the rule that, if he testifies, he must testify fully adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.
The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf, and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial, or to any tribunal, other than that in which the defendant preserves it by refusing to testify.
[Raffel v. United States, 271 U.S. 494 (1926)]
Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229 (1965)
Petitioner was convicted of murder in the first degree after a jury trial in a California court. He did not testify at the trial on the issue of guilt, though he did testify at the separate trialFN1 on the issue of penalty. The trial court instructed the jury on the issue of guilt, stating *610 that a defendant has a constitutional right not to testify. But it told the jury: FN2
FN1. See Penal Code s 190.1, providing for separate trials on the two issues.
FN2. Article I, s 13, of the California Constitution provides in part:
‘* * * in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.'
‘As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.'
It added, however, that no such inference could be drawn as to evidence respecting which he had no knowledge. It stated that failure of a defendant to deny**1231 or explain the evidence of which he had knowledge does not create a presumption of guilt nor by itself warrant an inference of guilt nor relieve the prosecution of any of its burden of proof.
Petitioner had been seen with the deceased the evening of her death, the evidence placing him with her in the alley where her body was found. The prosecutor made much of the failure of petitioner to testify:
‘The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.
‘What kind of a man is it that would want to have sex with a woman that beat up is she was beat up at the time he left?
*611 ‘He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.
‘These things he has not seen fit to take the stand and deny or explain.
‘And in the whole world, if anybody would know, this defendant would know.
‘Essie Mae is dead, she can't tell you her side of the story. The defendant won't.'
[1] The death penalty was imposed and the California Supreme Court affirmed. 60 Cal.2d 182, 32 Cal.Rptr. 24, 383 P.2d 432. The case is here on a writ of certiorari which we granted, 377 U.S. 989, 84 S.Ct. 1926, 12 L.Ed.2d 1043, to consider whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, decided after the Supreme Court of California had affirmed the present conviction.FN3
FN3. The California Supreme Court later held in People v. Modesto, 62 Cal.2d 436, 42 Cal.Rptr. 417, 398 P.2d 753, that its ‘comment’ rule squared with Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489. The overwhelming consensus of the States, however, is opposed to allowing comment on the defendant's failure to testify. The legislatures or courts of 44 States have recognized that such comment is, in light of the privilege against self-incrimination, ‘an unwarrantable line of argument.’ State v. Howard, 35 S.C. 197, 203, 14 S.E. 481, 483. See 8 Wigmore, Evidence s 2272, n. 2 (McNaughton rev. ed. 1961 and 1964 Supp.). Of the six States which permit comment, two, California and Ohio, give this permission by means of an explicit constitutional qualification of the privilege against self-incrimination. Cal.Const. Art. I, s 13; Ohio Const. Art. I, s 10. New Jersey permits comment, State v. Corby, 28 N.J. 106, 145 A.2d 289; cf. State v. Garvin, 44 N.J. 268, 208 A.2d 402; but its constitution contains no provision embodying the privilege against self-incrimination (see Laba v. Newark Bd. of Educ., 23 N.J. 364, 389, 129 A.2d 273, 287; State v. White, 27 N.J. 158, 168-169, 142 A.2d 65, 70). The absence of an express constitutional privilege against self-incrimination also puts Iowa among the six. See State v. Ferguson, 226 Iowa 361, 372-373, 283 N.W. 917, 923. Connecticut permits comment by the judge but not by the prosecutor. State v. Heno, 119 Conn. 29, 174 A. 181, 94 A.L.R. 696. New Mexico permits comment by the prosecutor but holds that the accused is then entitled to an instruction that ‘the jury shall indulge no presumption against the accused because of his failure to testify’. N.M.Stat.Ann. s 41-12-19; State v. Sandoval, 59 N.M. 85, 279 P.2d 850.
**1232 *612 [2] [3] If this were a federal trial, reversible error would have been committed. Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650, so holds. It is said, however, that the Wilson decision rested not on the Fifth Amendment, but on an Act of Congress, now 18 U.S.C. s 3481.FN4 That indeed is the fact, as the opinion of the Court in the Wilson case states. And see Adamson v. People of State of California, 332 U.S. 46, 50, n. 6, 67 S.Ct. 1672, 1674, 91 L.Ed. 1903; *613 Bruno v. United States, 308 U.S. 287, 294, 60 S.Ct. 198, 200, 84 L.Ed. 257. But that is the beginning, not the end, of our inquiry. The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.
FN4. Section 3481 reads as follows:
‘In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.’ June 25, 1948, c. 645, 62 Stat. 833.
The legislative history shows that 18 U.S.C. s 3481 was designed, inter alia, to bar counsel for the prosecution from commenting on the defendant's refusal to testify. Mr. Frye of Maine, spokesman for the bill, said, ‘That is the law of Massachusetts, and we proposed to adopt it as a law of the United States.’ 7 Cong.Rec. 385. The reference was to Mass.Stat. 1866, c. 260, now Mass.Gen.Laws Ann., c. 233, s 20, cl. Third (1959), which is almost identical with 18 U.S.C. s 3481. See also Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Scott, 123 Mass. 239; Opinion of the Justices, 300 Mass. 620, 15 N.E.2d 662.
[4] We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance. The Court in the Wilson case stated:
‘* * * the act was framed with a due regard also to those who might prefer to rely upon the presumption of innocence which the law gives to every one, and not wish to be witnesses. It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however, honest, who would therefore willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be witnesses, particularly when they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him.’ 149 U.S., p. 66, 13 S.Ct. p. 766.
[5] [6] [7] If the words ‘fifth Amendment’ are substituted for ‘act’ and for ‘statute’ the spirit of the Self-Incrimination*614 Clause is reflected. For comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ Murphy v. Waterfront Comm., 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678, which the Fifth Amendment outlaws.FN5 It is a penalty imposed by courts **1233 for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a consitutional privilege. People v. Modesto, 62 Cal.2d 436, 452-453, 42 Cal.Rptr. 417, 426-427, 398 P.2d 753, 762-763. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another. That the inference*615 of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself:
FN5. Our decision today that the Fifth Amendment prohibits comment on the defendant's silence is no innovation, for on a previous occasion a majority of this Court indicated their acceptance of this proposition. In Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, the question was, as here, whether the Fifth Amendment proscribed California's comment practice. The four dissenters (Black, Douglas, Murphy and Rutledge, JJ.) would have answered this question in the affirmative. A fifth member of the Court, Justice Frankfurter, stated in a separate opinion: ‘For historical reasons a limited immunity from the common duty to testify was written into the Federal Bill of Rights, and I am prepared to agree that, as part of that immunity, comment on the failure of an accused to take the witness stand is forbidden in federal prosecutions.’ Id., p. 61, 67 S.Ct. p. 1680. But, though he agreed with the dissenters on this point, he also agreed with Justices Vinson, Reed, Jackson, and Burton that the Fourteenth Amendment did not make the Self-Incrimination Clause of the Fifth Amendment applicable to the States; thus he joined the opinion of the Court which so held (the Court's opinion assumed that the Fifth Amendment barred comment, but it expressly disclaimed any intention to decide the point. Id., p. 50, 67 S.Ct., p. 1674).
‘Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him ((Cal.) Code Civ.Proc. s 2051) and not that he is unable to deny the accusations. It is true that the defendant might fear that his prior convictions will prejudice the jury, and therefore another possible inference can be drawn from his refusal to take the stand.’ Id., p. 453, 42 Cal.Rptr., p. 427, 398 P.2d, p. 763.
[8] We said in Malloy v. Hogan, supra, 378 U.S. p. 11, 84 S.Ct. p. 1495, that ‘the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.’ We take that in its literal sense and hold that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.FN6
FN6. We reserve decision on whether an accused can require, as in Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257, that the jury, be instructed that his silence must be disregarded.
Reversed.
[Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229 (1965)]
Neal v. State of Delaware, 103 U.S. 370 (1880):
In the first clause of this section, declaring who are citizens of the United States, there is nothing which touches the subject under consideration. The second clause, declaring that 'no State shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States,' is limited, according to the decision of this court in Slaughter-House Cases, to such privileges and immunities as belong to citizens of the United States, as distinguished from those of citizens of the State. If this construction be sound,-and, restricted as it is, it has not been overruled by those who approve of a loose and latitudinarian construction of another clause of the same section,-it will not be contended that the privilege of persons to act as jurors is covered by the inhibition. But if a broader construction be given to the clause, such as was advocated by the dissenting judges in Slaughter-House Cases, the inhibition can have no application. The Constitution, previous to this amendment, declared that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,' and it was never supposed or contended that jury duty or jury service was included among those privileges and immunities. The third clause, which [103 U.S. 370, 407] declares that no State shall deprive any person of life, liberty, or property without due process of law, has no reference to this subject. That is a provision found in all our State constitutions from the origin of the government, and is intended to protect life, liberty, and property from arbitrary legislation. It is upon the last clause of the section that the majority of the court are compelled to rely to sustain the act of Congress. 'No State shall deny to any person within its jurisdiction the equal protection of the laws.' What, then, is meant by this provision, 'equal protection of the laws'? All persons within the jurisdiction of the State, whether citizens or foreigners, male or female, old or young, are embraced in its comprehensive terms. If to give equal protection to them requires that persons of the classes to which they severally belong shall have the privilege or be subject to the duty-whichever it may be-of acting as jurors in the courts in cases affecting their interests, the mandate of the Constitution will produce a most extraordinary change in the administration of the laws of the States; it will abolish the distinctions made in the selection of jurors between citizens and foreigners, and between those of our race and those of the Mongolian, Indian, and other races, who may be at the time within their jurisdiction. A Chinaman may insist that people of his race shall be summoned as jurors in cases affecting his interests, and that the exclusion is a denial to him of the equal protection of the laws. Any foreigner, sojourning in the country, may make a similar claim for jurors of his nation. It is obvious that no such claim would be respected, and yet I am unable to see why it should not be sustained, if the construction placed upon the amendment by the majority of the court in this case be sound.
It seems to me that the universality of the protection contemplated by the clause in question renders the position of the majority of the court untenable. No one can truly affirm that women, the aged, and the resident foreigner, whether Caucasian or Mongolian, though excluded from acting as jurors, are not as equally protected by the laws of the State as those who are allowed or required to serve in that capacity. To afford equality of protection to all persons by its laws does not require the State to permit all persons to participate equally in the [103 U.S. 370, 408] administration of those laws, or to hold its offices, or to discharge the trusts of government. Equal protection of the laws of a State is extended to persons within its jurisdiction, within the meaning of the amendment, when its courts are open to them on the same terms as to others, with like rules of evidence and modes of procedure, for the security of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; when they are subjected to no restrictions in the acquisition of property, the enjoyment of personal liberty, and the pursuit of happiness, which do not equally affect others; when they are liable to no other nor greater burdens or charges than such as are laid upon others, and when no different nor greater punishment is enforced against them for a violation of the laws. When this condition of things exists in a State, there is that equality before the law which is guaranteed to all persons within its jurisdiction. The amendment, as I said in Ex parte Virginia, 'secures to all persons their civil rights upon the same terms; but it leaves political rights, or such as arise from the form of government and its administration, as they stood previous to its adoption. It has no more reference to them than it has to social rights and duties, which do not rest upon any positive law, though they are more potential in controlling the intercourse of individuals. . . . This is manifest from the fact that when it was desired to confer political power upon the newly made citizens of the States, as was done by inhibiting the denial to them of the suffrage on account of race, color, or previous condition of servitude, a new amendment was required.' 100 U.S. 339 , 368.