Lambert v. California/Dissent Frankfurter

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.

The present laws of the United States and of the forty-eight States are thick with provisions that command that some things not be done and others be done, although persons convicted under such provisions may have had no awareness of what the law required or that what they did was wrongdoing. The body of decisions sustaining such legislation, including innumerable registration laws, is almost as voluminous as the legislation itself. The matter is summarized in United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 302, 66 L.Ed. 604: 'Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.'

Surely there can hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person wholly innocent of wrongdoing, in the sense that he was not remotely conscious of violating any law, who is imprisoned for five years for conduct relating to narcotics, and the case of another person who is placed on probation for three years on condition that she pay $250, for failure, as a local resident, convicted under local law of a felony, to register under a law passed as an exercise of the State's 'police power.' Considerations of hardship often lead courts, naturally enough, to attribute to a statute the requirement of a certain mental element some consciousness of wrongdoing and knowledge of the law's command-as a matter of statutory construction. Then, too, a cruelly disproportionate relation between what the law requires and the sanction for its disobedience may constitute a violation of the Eighth Amendment as a cruel and unusual punishment, and, in respect to the States, even offend the Due Process Clause of the Fourteenth Amendment.

But what the Court here does is to draw a constitutional line between a State's requirement of doing and not doing. What is this but a return to Year Book distinctions between feasance and nonfeasance-a distinction that may have significance in the evolution of common-law notions of liability, but is inadmissible as a line between constitutionality and unconstitutionality. One can be confident that Mr. Justice Holmes would have been the last to draw such a line. What he wrote about 'blameworthiness' is worth quoting in its context:

'It is not intended to deny that criminal liability, as well     as civil, is founded on blameworthiness. Such a denial would     shock the moral sense of any civilized community; or, to put      it another way, a law which punished conduct which would not      be blameworthy in the average member of the community would      be too severe for that community to bear.' (This passage must be read in the setting of the broader discussion of      which it is an essential part. Holmes, The Common Law, at 49      50.)

If the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be impaired. I abstain from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents-a derelict on the waters of the law. Accordingly, I content myself with dissenting.