Wyman v. James/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

We are living in a society where one of the most important forms of property is government largesse which some call the 'new property.'1 The payrolls of government are but one aspect of that 'new property.' Defense contracts, highway contracts, and the other multifarious forms of contracts are another part. So are subsidies to air, rail, and other carriers. So are disbursements by government for scientific research.2 So are TV and radio licenses to use the air space which of course is part of the public domain. Our concern here is not with those subsidies but with grants that directly or indirectly implicate the home life of the recipients.

In 1969 roughly 127 billion dollars were spent by the federal, state, and local governments on 'social welfare.'3 To farmers alone almost four billion dollars were paid, in part, for not growing certain crops. Almost 129,000 farmers received $5,000 or more, their total benefits exceeding $1,450,000,000.4 Those payments were in some instances very large, a few running a million or more a year. But the majority were payments under $5,000 each.

Yet almost every beneficiary whether rich or poor, rural or urban, has a 'house'-one of the places protected by the Fourth Amendment against 'unreasonable searches and seizures.'5 The question in this case is whether receipt of largesse from the government makes the home of the beneficiary subject to access by an inspector of the agency of oversight, even though the beneficiary objects to the intrusion and even though the Fourth Amendment's procedure for access to one's house or home is not followed. The penalty here is not, of course, invasion of the privacy of Barbara James, only her loss of federal or state largesse. That, however, is merely rephrasing the problem. Whatever the semantics, the central question is whether the government by force of its largesse has the power to 'buy up' rights guaranteed by the Constitution.6 But for the assertion of her constitutional right, Barbara James in this case would have received the welfare benefit.

We spoke in Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, of the denial of tax exemptions by a State because of exercise of First Amendment rights.

'It cannot be gainsaid that a discriminatory denial of a tax     exemption for engaging in speech is a limitation on free      speech. * *  * To deny an exemption to claimants who engage in      certain forms of speech is in effect to penalize them for      such speech. Its deterrent effect is the same as if the State     were to fine them for this speech.' Id., at 518, 78 S.Ct., at      1338.

Likewise, while second-class mail rates may be granted or withheld by the Government, we would not allow them to be granted 'on condition that certain economic or political ideas not be disseminated.' Hannegan v. Esquire, Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586.

In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, a State providing unemployment insurance required recipients to accept suitable employment when it became available or lost the benefits. An unemployed lady was offered a job requiring her to work Saturdays but she refused because she was a Seventh Day Adventist to whom Saturday was the Sabbath. The State canceled her unemployment benefits and we reversed, saying:

'The ruling forces her to choose between following the     precepts of her religion and forfeiting benefits, on the one      hand, and abandoning one of the precepts of her religion in      order to accept work, on the other hand. Governmental imposition of such a choice puts     the same kind of burden upon the free exercise of religion as      would a fine imposed against appellant for her Saturday      worship.

'Nor may the South Carolina court's construction of the     statute be saved from constitutional infirmity on the ground      that unemployment compensation benefits are not appellant's      'right' but merely a 'privilege.' It is too late in the day      to doubt that the liberties of religion and expression may be      infringed by the denial of or placing of conditions upon a      benefit or privilege *  *  *. (T)o condition the availability     of benefits upon this appellant's willingness to violate a      cardinal principle of her religious faith effectively      penalizes the free exercise of her constitutional liberties.'      Id., at 404, 406, 83 S.Ct., at 1794, 1795.

These cases are in the tradition of United States v. Chicago, M. St. P. & P. R. Co., 282 U.S. 311, 328-329, 51 S.Ct. 159, 163 164, 75 L.Ed. 3597 where Mr. Justice Sutherland, writing for the Court, said:

'(T)he rule is that the right to continue the exercise of a     privilege granted by the state cannot be made to depend upon      the grantee's submission to a condition prescribed by the      state which is hostile to the provisions of the federal      Constitution.'

What we said in those cases is as applicable to Fourth Amendment rights as to those of the First. The Fourth, of course, speaks of 'unreasonable' searches and seizures, while the First is written in absolute terms. But the right of privacy which the Fourth protects is perhaps as vivid in our lives as the right of expression sponsored by the First. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510. If the regime under which Barbara James lives were enterprise capitalism as, for example, if she ran a small factory geared into the Pentagon's procurement program, she certainly would have a right to deny inspectors access to her home unless they came with a warrant.

That is the teaching of Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. In those cases we overruled Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877, and held the Fourth Amendment applicable to administrative searches of both the home and a business. The applicable principle, as stated in Camara as 'justified by history and by current experience' is that 'except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant.' 387 U.S., at 528-529, 87 S.Ct., at 1731. In See, we added that the 'businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.' Id., 387 U.S., at 543, 87 S.Ct., at 1739. Thee is not the slightest hint in See that the Government could condition a business license on the 'consent' of the licensee to the administrative searches we held violated the Fourth Amendment. It is a strange jurisprudence indeed which safeguards the businessman at his place of work from warrantless searches but will not do the same for a mother in her home.

Is a search of her home without a warrant made 'reasonable' merely because she is dependent on government largesse?

Judge Skelly Wright has stated the problem succinctly:

'Welfare has long been considered the equivalent of charity     and its recipients have been subjected to all kinds of      dehumanizing experiences in the government's effort to police      its welfare payments. In fact, over half a billion dollars     are expended annually for administration and policing in      connection with the Aid to Families with Dependent Children      program. Why such large sums are necessary for administration     and policing has never been adequately explained. No such     sums are spent policing the government subsidies granted to      farmers, airlines, steamship companies, and junk mail      dealers, to name but a few. The truth is that in this subsidy     area society has simply adopted a double standard, one for      aid to business and the farmer and a different one for      welfare.' Poverty, Minorities, and Respect For Law, 1970 Duke      L.J. 425, 437-438.

If the welfare recipient was not Barbara James but a prominent, affluent cotton or wheat farmer receiving benefit payments for not growing crops, would not the approach be different? Welfare in aid of dependent children, like social security and unemployment benefits, has an aura of suspicion.9 There doubtless are frauds in every sector of public welfare whether the recipient be a Barbara James or someone who is prominent or influential. But constitutional rights-here the privacy of the home-are obviously not dependent on the proverty or on the affluence of the beneficiary. It is the precincts of the home that the Fourth Amendment protects; and their privacy is as important to the lowly as to the mighty.

'(S)tudies tell us that the typical middle income American     reaches retirement age with a whole bundle of interests and expectations: as homeowner, as small      investor, and as social security 'beneficiary.' Of these, his      social security retirement benefits are probably his most      important resource. Should this, the most significant of his     rights, be entitled to a quality of protection inferior to      that afforded his other interests? It becomes the task of the     rule of law to surround this new 'right' to retirement      benefits with protections against arbitrary government      action, with substantive and procedural safeguards that are      as effective in context as the safeguards enjoyed by      traditional rights of property in the best tradition of the      older law.'

It may be that in some tenements one baby will do service to several women and call each one 'mom.' It may be that other frauds, less obvious, will be perpetrated. But if inspectors want to enter the precincts of the home against the wishes of the lady of the house, they must get a warrant. The need for exigent action as in cases of 'hot pursuit' is not present, for the lady will not disappear; nor will the baby.

I would place the same restrictions on inspectors entering the homes of welfare beneficiaries as are on inspectors entering the homes of those on the payroll of government, or the homes of those who contract with the government, or the homes of those who work for those having government contracts. The values of the home protected by the Fourth Amendment are not peculiar to capitalism as we have known it; they are equally relevant to the new form of socialism which we are entering. Moreover, as the numbers of functionaries and inspectors multiply, the need for protection of the individual becomes indeed more essential if the values of a free society are to remain.

What Lord Action wrote Bishop Creighton12 about the corruption of power is increasingly pertinent today:

'I cannot accept your canon that we are to judge Pope and     King unlike other men, with a favourable presumption that      they did no wrong. If there is any presumption it is the     other way against holders of power, increasing as the power      increases. Historic responsibility has to make up for the     want of legal responsibility. Power tends to corrupt and     absolute power corrupts absolutely. Great men are almost     always bad men, even when they exercise influence and not      authority: still more when you superadd the tendency or the      certainty of corruption by authority.'

The bureaucracy of modern government is not only slow, lumbering, and oppressive; it is omnipresent. It touches everyone's life at numerous points. It pries more and more into private affairs, breaking down the barriers that individuals erect to give them some insulation from the intrigues and harassments of modern life.13 Isolation is not a constitutional guarantee; but the sanctity of the sanctuary of the home is such-as marked and defined by the Fourth Amendment, McDonald v. United States, 335 U.S. 451, 453, 69 S.Ct. 191, 192, 93 L.Ed. 153. What we do today is to depreciate it.

I would sustain the judgment of the three-judge court in the present case.

STATISTICAL ABSTRACT OF THE UNITED STATES, 1970, p. 277.

Social Welfare Expenditures, by Source of Funds and Public Program:

(In millions of dollars)

................ Federal. State Federal  State  Federal  State

......................... and. and   and

......................... local    local    local