Activities within a State of salesmen in the employ of a foreign
corporation, exhibiting samples of merchandise and soliciting
orders from prospective buyers to be accepted or rejected by the
corporation at a point outside the State, were systematic and
continuous, and resulted in a large volume of interstate business.
A statute of the State requires employers to pay into the state
unemployment compensation fund a specified percentage of the wages
paid for the services of employees within the State.
1. In view of 26 U.S.C. § 1606(a) , providing that no person
shall be relieved from compliance with a state law requiring
payments to an unemployment fund on the ground that he is engaged
in interstate commerce, the fact that the corporation is engaged in
interstate commerce does not relieve it from liability for payments
to the state unemployment compensation fund. P. 326 U. S.
2. The activities in behalf of the corporation render it
amenable to suit in courts of the State to recover payments due to
the state unemployment compensation fund. P. 326 U. S.
(a) The activities in question established between the State and
the corporation sufficient contacts or ties to make it reasonable
and just, and in conformity to the due process requirements of the
Fourteenth Amendment, for the State to enforce against the
corporation an obligation arising out of such activities. P.
326 U. S.
(b) In such a suit to recover payments due to the unemployment
compensation fund, service of process upon one of the corporation's
salesmen within the State, and notice sent by registered mail to
the corporation at its home office, satisfies the requirements of
due process. P. 326 U. S.
Page 326 U. S. 311
3. The tax imposed by the state unemployment compensation
statute -- construed by the state court, in its application to the
corporation, as a tax on the privilege of employing salesmen within
the State -- does not violate the due process clause of the
Fourteenth Amendment. P. 326 U. S.
22 Wash. 2d 146, 154 P.2d 801, affirmed.
APPEAL from a judgment upholding the constitutionality of a
state unemployment compensation statute as applied to the appellant
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
The questions for decision are (1) whether, within the
limitations of the due process clause of the Fourteenth Amendment,
appellant, a Delaware corporation, has, by its activities in the
State of Washington, rendered itself amenable to proceedings in the
courts of that state to recover unpaid contributions to the state
unemployment compensation fund exacted by state statutes,
Washington Unemployment Compensation Act, Washington Revised
Statutes, § 9998-103a through § 9998-123a, 1941 Supp., and (2)
whether the state can exact those contributions consistently with
the due process clause of the Fourteenth Amendment.
The statutes in question set up a comprehensive scheme of
unemployment compensation, the costs of which are defrayed by
contributions required to be made by employers to a state
unemployment compensation fund.
Page 326 U. S. 312
The contributions are a specified percentage of the wages
payable annually by each employer for his employees' services in
the state. The assessment and collection of the contributions and
the fund are administered by appellees. Section 14(c) of the Act
(Wash.Rev.Stat., 1941 Supp., § 9998-114c) authorizes appellee
Commissioner to issue an order and notice of assessment of
delinquent contributions upon prescribed personal service of the
notice upon the employer if found within the state, or, if not so
found, by mailing the notice to the employer by registered mail at
his last known address. That section also authorizes the
Commissioner to collect the assessment by distraint if it is not
paid within ten days after service of the notice. By §§ 14e and 6b,
the order of assessment may be administratively reviewed by an
appeal tribunal within the office of unemployment upon petition of
the employer, and this determination is, by § 6i, made subject to
judicial review on questions of law by the state Superior Court,
with further right of appeal in the state Supreme Court, as in
other civil cases.
In this case, notice of assessment for the years in question was
personally served upon a sales solicitor employed by appellant in
the State of Washington, and a copy of the notice was mailed by
registered mail to appellant at its address in St. Louis, Missouri.
Appellant appeared specially before the office of unemployment, and
moved to set aside the order and notice of assessment on the ground
that the service upon appellant's salesman was not proper service
upon appellant; that appellant was not a corporation of the State
of Washington, and was not doing business within the state; that it
had no agent within the state upon whom service could be made; and
that appellant is not an employer, and does not furnish employment
within the meaning of the statute.
The motion was heard on evidence and a stipulation of facts by
the appeal tribunal, which denied the motion
Page 326 U. S. 313
and ruled that appellee Commissioner was entitled to recover the
unpaid contributions. That action was affirmed by the Commissioner;
both the Superior Court and the Supreme Court affirmed. 22 Wash. 2d
146, 154 P.2d 801. Appellant in each of these courts assailed the
statute as applied, as a violation of the due process clause of the
Fourteenth Amendment, and as imposing a constitutionally prohibited
burden on interstate commerce. The cause comes here on appeal under
§ 237(a) of the Judicial Code, 28 U.S.C. § 344(a), appellant
assigning as error that the challenged statutes, as applied,
infringe the due process clause of the Fourteenth Amendment and the
The facts, as found by the appeal tribunal and accepted by the
state Superior Court and Supreme Court, are not in dispute.
Appellant is a Delaware corporation, having its principal place of
business in St. Louis, Missouri, and is engaged in the manufacture
and sale of shoes and other footwear. It maintains places of
business in several states other than Washington, at which its
manufacturing is carried on and from which its merchandise is
distributed interstate through several sales units or branches
located outside the State of Washington.
Appellant has no office in Washington, and makes no contracts
either for sale or purchase of merchandise there. It maintains no
stock of merchandise in that state, and makes there no deliveries
of goods in intrastate commerce. During the years from 1937 to
1940, now in question, appellant employed eleven to thirteen
salesmen under direct supervision and control of sales managers
located in St. Louis. These salesmen resided in Washington; their
principal activities were confined to that state, and they were
compensated by commissions based upon the amount of their sales.
The commissions for each year totaled more than $31,000. Appellant
supplies its salesmen with a line of samples, each consisting of
one shoe of a pair, which
Page 326 U. S. 314
they display to prospective purchasers. On occasion, they rent
permanent sample rooms, for exhibiting samples, in business
buildings, or rent rooms in hotels or business buildings
temporarily for that purpose. The cost of such rentals is
reimbursed by appellant.
The authority of the salesmen is limited to exhibiting their
samples and soliciting orders from prospective buyers, at prices
and on terms fixed by appellant. The salesmen transmit the orders
to appellant's office in St. Louis for acceptance or rejection,
and, when accepted, the merchandise for filling the orders is
shipped f.o.b. from points outside Washington to the purchasers
within the state. All the merchandise shipped into Washington is
invoiced at the place of shipment, from which collections are made.
No salesman has authority to enter into contracts or to make
The Supreme Court of Washington was of opinion that the regular
and systematic solicitation of orders in the state by appellant's
salesmen, resulting in a continuous flow of appellant's product
into the state, was sufficient to constitute doing business in the
state so as to make appellant amenable to suit in its courts. But
it was also of opinion that there were sufficient additional
activities shown to bring the case within the rule, frequently
stated, that solicitation within a state by the agents of a foreign
corporation plus some additional activities there are sufficient to
render the corporation amenable to suit brought in the courts of
the state to enforce an obligation arising out of its activities
there. International Harvester Co. v. Kentucky,
234 U. S. 579
234 U. S. 587
People's Tobacco Co. v. American Tobacco Co., 246 U. S.
, 246 U. S. 87
Frene v. Louisville Cement Co.,
77 U.S.App.D.C. 129, 134
F.2d 511, 516. The court found such additional activities in the
salesmen's display of samples sometimes in permanent display rooms,
and the salesmen's residence within the state, continued over a
period of years, all resulting in a
Page 326 U. S. 315
substantial volume of merchandise regularly shipped by appellant
to purchasers within the state. The court also held that the
statute, as applied, did not invade the constitutional power of
Congress to regulate interstate commerce, and did not impose a
prohibited burden on such commerce.
Appellant's argument, renewed here, that the statute imposes an
unconstitutional burden on interstate commerce need not detain us.
For 53 Stat. 1391, 26 U.S.C. § 1606(a) provides that
"No person required under a State law to make payments to an
unemployment fund shall be relieved from compliance therewith on
the ground that he is engaged in interstate or foreign commerce, or
that the State law does not distinguish between employees engaged
in interstate or foreign commerce and those engaged in intrastate
It is no longer debatable that Congress, in the exercise of the
commerce power, may authorize the states, in specified ways, to
regulate interstate commerce or impose burdens upon it.
Kentucky Whip & Collar Co. v. Illinois Central R. Co.,
299 U. S. 334
Perkins v. Pennsylvania,
314 U.S. 586; Standard
Dredging Corp. v. Murphy, 319 U. S. 306
319 U. S. 308
Hooven & Allison Co. v. Evatt, 324 U.
, 324 U. S. 679
Southern Pacific Co. v. Arizona, 325 U.
, 325 U. S.
Appellant also insists that its activities within the state were
not sufficient to manifest its "presence" there, and that, in its
absence, the state courts were without jurisdiction, that,
consequently, it was a denial of due process for the state to
subject appellant to suit. It refers to those cases in which it was
said that the mere solicitation of orders for the purchase of goods
within a state, to be accepted without the state and filled by
shipment of the purchased goods interstate, does not render the
corporation seller amenable to suit within the state. See Green
v. Chicago, B. & Q. R. Co., 205 U.
, 205 U. S. 533
International Harvester Co. v. Kentucky, supra,
234 U. S.
Page 326 U. S. 316
& Reading R. Co. v. McKibbin, 243 U.
, 243 U. S. 268
People's Tobacco Co. v. American Tobacco Co., supra,
246 U. S. 87
And appellant further argues that, since it was not present within
the state, it is a denial of due process to subject it to taxation
or other money exaction. It thus denies the power of the state to
lay the tax or to subject appellant to a suit for its
Historically, the jurisdiction of courts to render judgment
is grounded on their de facto
over the defendant's person. Hence, his presence within the
territorial jurisdiction of a court was prerequisite to its
rendition of a judgment personally binding him. Pennoyer v.
Neff, 95 U. S. 714
95 U. S. 733
But now that the capias ad respondendum
has given way to
personal service of summons or other form of notice, due process
requires only that, in order to subject a defendant to a judgment
if he be not present within the territory of
the forum, he have certain minimum contacts with it such that the
maintenance of the suit does not offend "traditional notions of
fair play and substantial justice." Milliken v. Meyer,
311 U. S. 457
311 U. S. 463
Holmes, J., in McDonald v. Mabee,
243 U. S. 90
243 U. S. 91
Compare Hoopeston Canning Co. v. Cullen, 318 U.
, 318 U. S. 316
318 U. S. 319
See Blackmer v. United States, 284 U.
; Hess v. Pawloski, 274 U.
; Young v. Masci, 289 U.
Since the corporate personality is a fiction, although a fiction
intended to be acted upon as though it were a fact, Klein v.
Board of Supervisors, 282 U. S. 19
282 U. S. 24
is clear that, unlike an individual, its "presence" without, as
well as within, the state of its origin can be manifested only by
activities carried on in its behalf by those who are authorized to
act for it. To say that the corporation is so far "present" there
as to satisfy due process requirements, for purposes of taxation or
the maintenance of suits against it in the courts of the state, is
to beg the question to be decided. For the terms "present" or
Page 326 U. S. 317
used merely to symbolize those activities of the corporation's
agent within the state which courts will deem to be sufficient to
satisfy the demands of due process. L. Hand, J., in Hutchinson
v. Chase & Gilbert,
45 F.2d 139, 141. Those demands may be
met by such contacts of the corporation with the state of the forum
as make it reasonable, in the context of our federal system of
government, to require the corporation to defend the particular
suit which is brought there. An "estimate of the inconveniences"
which would result to the corporation from a trial away from its
"home" or principal place of business is relevant in this
connection. Hutchinson v. Chase & Gilbert, supra,
"Presence" in the state in this sense has never been doubted
when the activities of the corporation there have not only been
continuous and systematic, but also give rise to the liabilities
sued on, even though no consent to be sued or authorization to an
agent to accept service of process has been given. St. Clair v.
Cox, 106 U. S. 350
106 U. S. 355
Connecticut Mutual Co. v. Spratley, 172 U.
, 172 U. S.
-611; Pennsylvania Lumbermen's Ins. Co. v.
Meyer, 197 U. S. 407
197 U. S.
-415; Commercial Mutual Co. v. Davis,
213 U. S. 245
213 U. S.
-256; International Harvester Co. v. Kentucky,
supra; cf. St. Louis S.W. R. Co. v. Alexander, 227 U.
. Conversely, it has been generally recognized
that the casual presence of the corporate agent, or even his
conduct of single or isolated items of activities in a state in the
corporation's behalf, are not enough to subject it to suit on
causes of action unconnected with the activities there. St.
Clair v. Cox, supra, 106 U. S. 359
106 U. S. 360
Old Wayne Life Assn. v. McDonough, 204 U. S.
, 204 U. S. 21
Frene v. Louisville Cement Co., supra,
515, and cases
cited. To require the corporation in such circumstances to defend
the suit away from its home or other jurisdiction where it carries
on more substantial activities has been thought to lay too great
and unreasonable a burden on the corporation to comport with due
Page 326 U. S. 318
While it has been held, in cases on which appellant relies, that
continuous activity of some sorts within a state is not enough to
support the demand that the corporation be amenable to suits
unrelated to that activity, Old Wayne Life Assn. v. McDonough,
supra; Green v. Chicago, B. & Q. R. Co., supra; Simon v.
Southern R. Co., 236 U. S. 115
People's Tobacco Co. v. American Tobacco Co., supra; cf. Davis
v. Farmers Co-operative Co., 262 U. S. 312
262 U. S. 317
there have been instances in which the continuous corporate
operations within a state were thought so substantial and of such a
nature as to justify suit against it on causes of action arising
from dealings entirely distinct from those activities. See
Missouri, K. & T. R. Co. v. Reynolds,
255 U.S. 565;
Tauza v. Susquehanna Coal Co.,
220 N.Y. 259, 115 N.E. 915;
cf. St. Louis S.W. R. Co. v. Alexander, supra.
Finally, although the commission of some single or occasional
acts of the corporate agent in a state sufficient to impose an
obligation or liability on the corporation has not been thought to
confer upon the state authority to enforce it, Rosenberg Bros.
& Co. v. Curtis Brown Co., 260 U.
, other such acts, because of their nature and
quality and the circumstances of their commission, may be deemed
sufficient to render the corporation liable to suit. Cf. Kane
v. New Jersey, 242 U. S. 160
Hess v. Pawloski, supra; Young v. Masci, supra.
of the decisions holding the corporation amenable to suit have been
supported by resort to the legal fiction that it has given its
consent to service and suit, consent being implied from its
presence in the state through the acts of its authorized agents.
Lafayette Insurance Co. v.
18 How. 404, 59 U. S. 407
St. Clair v. Cox, supra, 106 U. S. 356
Commercial Mutual Co. v. Davis, supra, 213 U. S. 254
Washington v. Superior Court, 289 U.
, 289 U. S.
-365. But, more realistically, it may be said that
those authorized acts were of such a nature as to justify the
fiction. Smolik v. Philadelphia &
Page 326 U. S. 319
222 F. 148, 151. Henderson, The Position
of Foreign Corporations in American Constitutional Law, 94-95.
It is evident that the criteria by which we mark the boundary
line between those activities which justify the subjection of a
corporation to suit and those which do not cannot be simply
mechanical or quantitative. The test is not merely, as has
sometimes been suggested, whether the activity, which the
corporation has seen fit to procure through its agents in another
state, is a little more or a little less. St. Louis S.W. R. Co.
v. Alexander, supra, 227 U. S. 228
International Harvester Co. v. Kentucky, supra,
234 U. S. 587
Whether due process is satisfied must depend, rather, upon the
quality and nature of the activity in relation to the fair and
orderly administration of the laws which it was the purpose of the
due process clause to insure. That clause does not contemplate that
a state may make binding a judgment in personam
individual or corporate defendant with which the state has no
contacts, ties, or relations. Cf. Pennoyer v. Neff, supra;
Minnesota Commercial Assn. v. Benn, 261 U.
But, to the extent that a corporation exercises the privilege of
conducting activities within a state, it enjoys the benefits and
protection of the laws of that state. The exercise of that
privilege may give rise to obligations, and, so far as those
obligations arise out of or are connected with the activities
within the state, a procedure which requires the corporation to
respond to a suit brought to enforce them can, in most instances,
hardly be said to be undue. Compare International Harvester Co.
v. Kentucky, supra, with Green v. Chicago, B. & Q. R. Co.,
supra, and People's Tobacco Co. v. American Tobacco Co.,
supra. Compare Connecticut Mutual Co. v. Spratley,
supra, 172 U. S. 619
172 U. S. 620
and Commercial Mutual Co. v. Davis, supra, with Old Wayne Life
Assn. v. McDonough, supra. See
29 Columbia Law
Page 326 U. S. 320
Applying these standards, the activities carried on in behalf of
appellant in the State of Washington were neither irregular nor
casual. They were systematic and continuous throughout the years in
question. They resulted in a large volume of interstate business,
in the course of which appellant received the benefits and
protection of the laws of the state, including the right to resort
to the courts for the enforcement of its rights. The obligation
which is here sued upon arose out of those very activities. It is
evident that these operations establish sufficient contacts or ties
with the state of the forum to make it reasonable and just,
according to our traditional conception of fair play and
substantial justice, to permit the state to enforce the obligations
which appellant has incurred there. Hence, we cannot say that the
maintenance of the present suit in the State of Washington involves
an unreasonable or undue procedure.
We are likewise unable to conclude that the service of the
process within the state upon an agent whose activities establish
appellant's "presence" there was not sufficient notice of the suit,
or that the suit was so unrelated to those activities as to make
the agent an inappropriate vehicle for communicating the notice. It
is enough that appellant has established such contacts with the
state that the particular form of substituted service adopted there
gives reasonable assurance that the notice will be actual.
Connecticut Mutual Co. v. Spratley, supra, 172 U. S. 618
172 U. S. 619
Board of Trade v. Hammond Elevator Co., 198 U.
, 198 U. S.
-438; Commercial Mutual Co. v. Davis, supra,
213 U. S.
-255. Cf. Riverside Mills v. Menefee,
237 U. S. 189
237 U. S. 194
237 U. S. 195
See Knowles v. Gaslight & Coke
19 Wall. 58, 86 U. S. 61
McDonald v. Mabee, supra; Milliken v. Meyer, supra.
can we say that the mailing of the notice of suit to appellant by
registered mail at its home office was not reasonably calculated to
apprise appellant of the suit. Compare Hess v. Pawloski, supra,
with McDonald v. Mabee, supra,
Page 326 U. S. 321
243 U. S. 92
and Wuchter v. Pizzutti, 276 U. S. 13
276 U. S. 19
276 U. S. 24
cf. Becquet v. MacCarthy,
2 B. & Ad. 951;
Maubourquet v. Wyse,
1 Ir.Rep.C.L. 471. See Washington
v. Superior Court, supra, 289 U. S.
Only a word need be said of appellant's liability for the
demanded contributions to the state unemployment fund. The Supreme
Court of Washington, construing and applying the statute, has held
that it imposes a tax on the privilege of employing appellant's
salesmen within the state measured by a percentage of the wages,
here, the commissions payable to the salesmen. This construction we
accept for purposes of determining the constitutional validity of
the statute. The right to employ labor has been deemed an
appropriate subject of taxation in this country and England, both
before and since the adoption of the Constitution. Steward
Machine Co. v. Davis, 301 U. S. 548
301 U. S. 579
And such a tax imposed upon the employer for
unemployment benefits is within the constitutional power of the
states. Carmichael v. Southern Coal Co., 301 U.
, 301 U. S. 508
Appellant having rendered itself amenable to suit upon
obligations arising out of the activities of its salesmen in
Washington, the state may maintain the present suit in
to collect the tax laid upon the exercise of the
privilege of employing appellant's salesmen within the state. For
Washington has made one of those activities which, taken together,
establish appellant's "presence" there for purposes of suit the
taxable event by which the state brings appellant within the reach
of its taxing power. The state thus has constitutional power to lay
the tax and to subject appellant to a suit to recover it. The
activities which establish its "presence" subject it alike to
taxation by the state and to suit to recover the tax. Equitable
Life Society v. Pennsylvania, 238 U.
, 238 U. S. 146
cf. International Harvester Co. v. Department of Taxation,
322 U. S. 435
322 U. S. 442
et seq.; Hoopeston Canning Co. v. Cullen,
Page 326 U. S. 322
supra, 318 U. S.
-319; see General Trading Co. v. Tax Comm'n,
322 U. S. 335
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
MR. JUSTICE BLACK delivered the following opinion.
Congress, pursuant to its constitutional power to regulate
commerce, has expressly provided that a State shall not be
prohibited from levying the kind of unemployment compensation tax
here challenged. 26 U.S.C. 1600. We have twice decided that this
Congressional consent is an adequate answer to a claim that
imposition of the tax violates the Commerce Clause. Perkins v.
314 U.S. 586, affirming
342 Pa. 529;
Standard Dredging Corp. v. Murphy, 319 U.
, 319 U. S. 308
Two determinations by this Court of an issue so palpably without
merit are sufficient. Consequently, that part of this appeal which
again seeks to raise the question seems so patently frivolous as to
make the case a fit candidate for dismissal. Fay v.
Crozer, 217 U. S. 455
is the further ground advanced on this appeal, that the State of
Washington has denied appellant due process of law, any less devoid
of substance. It is my view, therefore, that we should dismiss the
appeal as unsubstantial, [Footnote
] Seaboard Air Line R. Co. v. Watson, 287 U. S.
, 287 U. S. 90
287 U. S. 92
decline the invitation to formulate broad rules as to the meaning
of due process, which here would amount to deciding a
constitutional question "in advance of the necessity for its
decision." Federation of Labor v. McAdory, 325 U.
, 325 U. S.
Page 326 U. S. 323
Certainly appellant cannot, in the light of our past decisions,
meritoriously claim that notice by registered mail and by personal
service on its sales solicitors in Washington did not meet the
requirements of procedural due process. And the due process clause
is not brought in issue any more by appellant's further
conceptualistic contention that Washington could not levy a tax or
bring suit against the corporation because it did not honor that
State with its mystical "presence." For it is unthinkable that the
vague due process clause was ever intended to prohibit a State from
regulating or taxing a business carried on within its boundaries
simply because this is done by agents of a corporation organized
and having its headquarters elsewhere. To read this into the due
process clause would, in fact, result in depriving a State's
citizens of due process by taking from the State the power to
protect them in their business dealings within its boundaries with
representatives of a foreign corporation. Nothing could be more
irrational, or more designed to defeat the function of our
federative system of government. Certainly a State, at the very
least, has power to tax and sue those dealing with its citizens
within its boundaries, as we have held before. Hoopeston
Canning Co. v. Cullen, 318 U. S. 313
Were the Court to follow this principle, it would provide a
workable standard for cases where, as here, no other questions are
involved. The Court has not chosen to do so, but instead has
engaged in an unnecessary discussion, in the course of which it has
announced vague Constitutional criteria applied for the first time
to the issue before us. It has thus introduced uncertain elements
confusing the simple pattern and tending to curtail the exercise of
State powers to an extent not justified by the Constitution.
The criteria adopted, insofar as they can be identified, read as
follows: Due Process does permit State courts to "enforce the
obligations which appellant has incurred" if
Page 326 U. S. 324
it be found "reasonable and just according to our traditional
conception of fair play and substantial justice." And this, in
turn, means that we will "permit" the State to act if, upon
"an 'estimate of the inconveniences' which would result to the
corporation from a trial away from its 'home' or principal place of
we conclude that it is "reasonable" to subject it to suit in a
State where it is doing business.
It is true that this Court did use the terms "fair play" and
"substantial justice" in explaining the philosophy underlying the
holding that it could not be "due process of law" to render a
personal judgment against a defendant without notice and an
opportunity to be heard. Milliken v. Meyer, 311 U.
. In McDonald v. Mabee, 243 U. S.
, 243 U. S. 91
cited in the Milliken,
case, Mr. Justice Holmes, speaking
for the Court, warned against judicial curtailment of this
opportunity to be heard, and referred to such a curtailment as a
denial of "fair play," which even the common law would have deemed
"contrary to natural justice." And previous cases had indicated
that the ancient rule against judgments without notice had stemmed
from "natural justice" concepts. These cases, while giving
additional reasons why notice under particular circumstances is
inadequate, did not mean thereby that all legislative enactments
which this Court might deem to be contrary to natural justice ought
to be held invalid under the due process clause. None of the cases
purport to support or could support a holding that a State can tax
and sue corporations only if its action comports with this Court's
notions of "natural justice." I should have thought the Tenth
Amendment settled that.
I believe that the Federal Constitution leaves to each State,
without any "ifs" or "buts," a power to tax and to open the doors
of its courts for its citizens to sue corporations whose agents do
business in those States. Believing that the Constitution gave the
States that power, I think it a judicial deprivation to condition
its exercise upon this
Page 326 U. S. 325
Court's notion of "fair play," however appealing that term may
be. Nor can I stretch the meaning of due process so far as to
authorize this Court to deprive a State of the right to afford
judicial protection to its citizens on the ground that it would be
more "convenient" for the corporation to be sued somewhere
There is a strong emotional appeal in the words "fair play,"
"justice," and "reasonableness." But they were not chosen by those
who wrote the original Constitution or the Fourteenth Amendment as
a measuring rod for this Court to use in invalidating State or
Federal laws passed by elected legislative representatives. No one,
not even those who most feared a democratic government, ever
formally proposed that courts should be given power to invalidate
legislation under any such elastic standards. Express prohibitions
against certain types of legislation are found in the Constitution,
and, under the long-settled practice, courts invalidate laws found
to conflict with them. This requires interpretation, and
interpretation, it is true, may result in extension of the
Constitution's purpose. But that is no reason for reading the due
process clause so as to restrict a State's power to tax and sue
those whose activities affect persons and businesses within the
State, provided proper service can be had. Superimposing the
natural justice concept on the Constitution's specific prohibitions
could operate as a drastic abridgment of democratic safeguards they
embody, such as freedom of speech, press and religion, [Footnote 2
] and the right to counsel.
Page 326 U. S. 326
has already happened. Betts v. Brady, 316 U.
. Compare Feldman v. United States,
322 U. S. 487
322 U. S.
-503. For application of this natural law concept,
whether under the terms "reasonableness," "justice," or "fair
play," makes judges the supreme arbiters of the country's laws and
practices. Polk Co. v. Glover, 305 U. S.
, 305 U. S. 17
Federal Power Commission v. Natural Gas Pipeline Co.,
315 U. S. 575
315 U. S. 600
n. 4. This result, I believe, alters the form of government our
Constitution provides. I cannot agree.
True, the State's power is here upheld. But the rule announced
means that tomorrow's judgment may strike down a State or Federal
enactment on the ground that it does not conform to this Court's
idea of natural justice. I therefore find myself moved by the same
fears that caused Mr. Justice Holmes to say in 1930:
"I have not yet adequately expressed the more than anxiety that
I feel at the ever-increasing scope given to the Fourteenth
Amendment in cutting down what I believe to be the constitutional
rights of the States. As the decisions now stand, I see hardly any
limit but the sky to the invalidating of those rights if they
happen to strike a majority of this Court as for any reason
Baldwin v. Missouri, 281 U. S. 586
281 U. S.
This Court has, on several occasions, pointed out the
undesirable consequences of a failure to dismiss frivolous appeals.
Salinger v. United States, 272 U.
, 272 U. S. 544
United Surety Co. v. American Fruit Product Co.,
238 U. S. 140
De Bearn v. Safe Deposit & Trust Co., 233 U. S.
, 233 U. S.
These First Amendment liberties -- freedom of speech, press and
religion -- provide a graphic illustration of the potential
restrictive capacity of a rule under which they are protected at a
particular time only because the Court, as then constituted,
believes them to be a requirement of fundamental justice.
Consequently, under the same rule, another Court, with a different
belief as to fundamental justice, could, at least as against State
action, completely or partially withdraw Constitutional protection
from these basic freedoms, just as though the First Amendment had
never been written.