GPO-CONAN-2017-10-15.pdf

531 laches persons failing to avail themselves of an

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531 Laches. —Persons failing to avail themselves of an opportunity to object and be heard cannot thereafter complain of assessments as arbitrary and unconstitutional. 532 Likewise a car company that failed to report its gross receipts, as required by statute, has no further right to contest the state comptroller’s estimate of those re- ceipts and his adding to his estimate the 10 percent penalty permit- ted by law. 533 Eminent Domain The Due Process Clause of the Fourteenth Amendment has been held to require that when a state or local governmental body, or a private body exercising delegated power, takes private property it must provide just compensation and take only for a public purpose. Applicable principles are discussed under the Fifth Amendment. 534 Fundamental Rights (Noneconomic Substantive Due Process) A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. The concept has come to include disparate lines of cases, and various labels have been applied to the rights protected, including “funda- mental rights,” “privacy rights,” “liberty interests” and “incorpo- rated rights.” The binding principle of these cases is that they in- volve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law, 535 serves as the basis for some of the most significant constitutional remedy. McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 18 (1990). See also Reich v. Collins, 513 U.S. 106 (1994) (violation of due process to hold out a post-deprivation remedy for unconstitutional taxation and then, after the disputed taxes had been paid, to declare that no such remedy exists); Newsweek, Inc. v. Florida Dep’t of Revenue, 522 U.S. 442 (1998) (per curiam) (violation of due process to limit remedy to one who pursued pre-payment of tax, where litigant reasonably relied on apparent availability of post-payment remedy). 531 Carpenter v. Shaw, 280 U.S. 363 (1930). 532 Farncomb v. Denver, 252 U.S. 7 (1920). 533 Pullman Co. v. Knott, 235 U.S. 23 (1914). 534 See analysis under “National Eminent Domain Power,” Fifth Amendment, su- pra . 535 See , e.g. , R AOUL B ERGER ,G OVERNMENT BY J UDICIARY : T HE T RANSFORMATION OF THE F OUR - TEENTH A MENDMENT (Cambridge: 1977). 1931 AMENDMENT 14—RIGHTS GUARANTEED
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holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on con- stitutional text, but on noneconomic substantive due process and the “incorporation” of fundamental rights. 536 Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion, 537 remain controversial.
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