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. St) are *327disbursements 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 largésse. That, however, is merely rephrasing the problem. Whatever the seman*328tics, 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, 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.
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.
In Sherbert v. Verner, 374 U. S. 398, a State providing unemployment insurance required recipients to accept suitable employment when it became available or lose 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 *329the 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 in-' firmity on the ground that unemployment com-, pensation 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.
■
These cases are in . the tradition of United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311, 328-329,7 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.” 8
*330What 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. 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.
*331That is the teaching of Camara v. Municipal Court, 387 U. S. 523, and See v. City of Seattle, 387 U. S. 541. In those cases we overruled Frank v. Maryland, 359 U. S. 360, 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. 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., at 543. There 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 pro*332gram. 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 poverty or on the affluence of the beneficiary. It is the precincts of the home that the Fourth Amendment protects; and *333their privacy is as important to the, lowly as to the ■mighty.10
“[S]tudies tell us that the typical middle income American reaches retirement age with a whole *334bundle 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 ¿gainst 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.”11
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 be*335comes indeed more essential if the values of a free society áre to remain.
What Lord Acton 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 superádd 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. What we do today is to depreciate it.
I would sustain the judgment of the three-judge court in the present case.
*336APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING
Statistical Abstract op the United States, 1970, p. 277.
Social Welfare Expenditures, by Source op Funds and Public Program : 1967 to 1969
(In millions of dollars)
*337APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING
Hearings on H. R. 17923 before the Senate Committee on Appropriations, 91st Cong., 2d Sess., pt. 3, p. 1979.
U. S. Department of Agriculture Agricultural Stabilization and Conservation Service ASCS Payments to Producers, All Programs,1 Calendar Year 1969
Amount Percent of total
Total payments. $3,794,996,353 100
Payments bélow $5,000. 2,078,439,326 55
Payments $5,000 or above. 1,457,635,442 38
Undistributed2 . 258,921,585 7
ASCS Payments by Size Groupings $5’000 and over (Excludes sugar and wool payments)
Range Number Amount
$5,000 to $7,499. 61,330 370,839,000
$7,500 to $9,999. 25,859 222,488,754
$10,000 to $14,999... 21,147 254,979,861
$15,000 to $24,999... 12,856 242,547,832
$25,000 to $49,999... 6,029 200,524,421
$50,000 to $99,999... 1,404 91,191,225
$100,000 to $499,999. 346 55,113,824
$500,000 to $999,999. 11 ■7,668,176
$1,000,000 and over.. 5 12,282,349
Total .■. 128,987 1,457,635,442
See Réich, The New Property, 73 Yale L. J. 733, 737-739.
See Ginzburg, What Science Policy?, Columbia Foruin, Fall 1970, p. 12.
See Appendix I to this opinion.
“The right of the people to be sécure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath 'or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
See Note, Unconstitutional Conditions, 73 Harv. L. Rev. 1595; 1599.
And see Hale, Unconstitutional Conditions and Constitutional Rights, 35 Col. L. Rev. 321 (1935); Frost & Frost Co. v. Railroad Comm’n, 271 U. S. 583, 594.
Flemming v. Nestor, 363 U. S. 603, is not in accord’ with that tradition. There we upheld the right of Congress to strip away accrued social security benefits. Nestor, an alien, came to- this country in 1913. From the enactment of the Social Security Act until 1955 Nestor and his employers contributed payments to the fund. In 1955 Nestor became eligible for old-age benefits. One year later he was deported for having' been a member of the *330Communist Party between 1933 and 1939 — a time when it wás perfectly legal to be a member. In 1954 Congress passed a law which provided'for the loss of social security benefits for anyone deported for having been a member of the Communist Party. Like the law providing'for deportation for membership this law, too, .was fully retroactive. Thus Nestor was deported after he had retired based on a law condemning membership in the Communist Party at the time when it was legal to be a member, and stripped of his retirement income based on a law which .was triggered by that deportation. We upheld the constitutionality of the 1954 law by a 5-4 majority.
The majority stated Nestor’s property had not been taken without due process because Nestor had no property fights; his interest was “noncontractual” and could “not be soundly analogized to that of the holder of an annuity.” 363 TI. S., at 610. The majority then went on to hold social security benefits were only protected from congressional action which is “utterly lacking in rational justification.” Id., at 611.
If it was unconstitutional in Speiser to condition a tax exemption on a limitation on freedom of speech, it was equally unconstitutional to withhold a social security benefit conditioned on a limitation. of freedom of association. A right-privilege distinction was implicitly rejected • in Speiser and explicitly rejected in Sherbert. Today’s decision when dealing with a state statute joins Flemming as an anomaly in the cases dealing with unconstitutional conditions.
Juvenal wrote:
“Poverty’s greatest curse, much worse than the. fact of it, is that it makes men objects of mirth, ridiculed, humbled, embarrassed.” Satires 39 (Indiana Univ. Press 1958).
In the 1837 Term the Court held in City of New York v. Miln, 11 Pet. 102, that New York could require ships coming in from abroad to report the names, ages, etc., of every person brought to these shores. The Court said: “We think it as competent and as necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts; as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported, or from a ship, the crew of which may be labouring under an infectious disease.” Id., at 142.
I regretfully conclude that today’s decision is ideologically of the same vintage.
An,individual who refuses to allow the home visit could either be a welfare recipient at the time or an applicant' for assistance., In neither case would the outcome of the refusal be different.
If the mother is already a recipient, Social Services Regulations §351.21, 18 NYCRR §351.21, requires continuing contacts at home between the recipient and the social worker." Should a recipient refuse a visit then- § 175 of the Policies Governing the Administration of Public Assistance (“Mandatory visits must be made in accordance with law that requires that persons be visited . . . .”) would require termination.. When the decision to “discontinue, suspend or reduce” benefits is made, the recipient would receive a hearing under § 351.26 at which the recipient could present “written and oral relevant evidence and argument to demonstrate why his grant should not be discontinued, suspended or reduced.” Since § 134 of the Social Services Law requires visits, the refusal to- allow the visit would .apparently be dispositive of the matter.
That seems to be conceded here,.by the commissioner. In light of that fact, the failure of appellee, who went to a hearing and was denied relief, to pursue any further state remedy seems irrelevant as the only question posed was the constitutionality under the Fourth Amendment of the termination of assistance for failure to agree to the warrantless entry into her home.
Except in very limited circumstances (Social Services Regulations §§ 351.10 and 372 (Emergency Assistance)) an initial home visit and investigation is- necessary before receiving benefits. Should a potential recipient refuse the initial visit, ;he would be notified under § 351.14 (b) of the reason for the denial. Then he could request a “fair hearing” under Board Rule 85 and Social Services Regulations § 358. Again it appears that refusing the visit would be dispositive of the claim.
The extent to which .a person could receive emergency assistance after refusal of a visit' is unclear. . Social Services Regulations § 372.3 recognizes that emergency assistance could be available to a person while the “fair hearing” is pending. It would seem, however, that implicit in § 372.3 is the notion that, if the claim is' disposed of, then the emergency assistance would terminate. Also emergency assistance is limited to periods not in excess of 30 consecutive days in any 12-month period. Social Services Regulations §372.1.
Jones, The Rule of Law and the Welfare State, 58 Col. L. Rev. 143, 154-155 (1958).
J. Acton, Essays on Freedom and Power 364 • (H. Finer ed. 1948).
Mass raids upon the homes of welfare recipients are matters of record. See Parrish v. Civil Service Comm’n, 66 Cal. 2d 260, 425 P. 2d 223, where an inspector was discharged because he refused to engage in such "illegal activity” and was granted relief by way of back pay.
Includes acreage diversion payments on cotton, feed grain, arid wheat; price support payments on cotton and feed grain; wheat marketing' certificates; cost-share payments under the Agricultural Conservation Program, emergency conservation and Appalachia programs; land retirement and conservation assistance payments under the cropland conversion, cropland adjustment, and conservation reserve programs; and the milk indemnity payment program. Does not include any price support loans or purchases, and payments under the Sugar Act and the National Wool Act.
Includes payments to producers under the Sugar Act and the National Wool Act and payments to vendors .for costs of conservation materials and services and funds transferred to other agencies for conservation technical services under the Agricultural Conservation Program; promotion fund deduction withheld under the National Wool Act which were transferred to the National Sheep Producers Council.