Annotations p. 39

  State Action .--In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts, 82 and to provide criminal 83 and civil 84 liability for state officials and agents 85 or persons associated with them 86 who violate protected rights. These statutory measures designed to eliminate discrimination ''under color of law'' 87 present no problems of constitutional foundation, although there may well be other problems of application. 88 But the Reconstruction Congresses did not stop with statutory implementation of rights guaranteed against state infringement, moving as well against private interference.

Thus, in the Civil Rights Act of 1875 89 Congress had proscribed private racial discrimination in the admission to and use of inns, public conveyances, theaters, and other places of public amusement. The Civil Rights Cases 90 found this enactment to be beyond Congress' power to enforce the Fourteenth Amendment. It was observed that Sec. 1 was prohibitory only upon the States and did not reach private conduct. Therefore, Congress' power under Sec. 5 to enforce Sec. 1 by appropriate legislation was held to be similarly limited. ''It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment.'' 91 The holding in this case had already been preceded by United States v. Cruikshank 92 and by United States v. Harris 93 in which the Federal Government had prosecuted individuals for killing and injuring African Americans. The Amendment did not increase the power of the Federal Government vis-a-vis individuals, the Court held, only with regard to the States themselves. 94  

Cruikshank did, however, recognize a small category of federal rights which Congress could protect against private deprivation, rights which the Court viewed as deriving particularly from one's status as a citizen of the United States and which Congress had a general police power to protect. 95 These rights included the right to vote in federal elections, general and primary, 96 the right to federal protection while in the custody of federal officers, 97 and the right to inform federal officials of violations of federal law. 98 The right of interstate travel is a basic right derived from the Federal Constitution which Congress may protect. 99 In United States v. Williams, 100 in the context of state action, the Court divided four-to-four over whether the predecessor of 18 U.S.C. Sec. 241 in its reference to a ''right or privilege secured . . . by the Constitution or laws of the United States'' encompassed rights guaranteed by the Fourteenth Amendment, or was restricted to those rights ''which Congress can beyond doubt constitutionally secure against inter ference by private individuals.'' This issue was again reached in United States v. Price 101 and United States v. Guest, 102 again in the context of state action, in which the Court concluded that the statute included within its scope rights guaranteed by the due process and equal protection clauses.

Inasmuch as both Price and Guest concerned conduct which the Court found implicated with sufficient state action, it did not then have to reach the question of Sec. 241's constitutionality when applied to private action interfering with rights not the subject of a general police power. But Justice Brennan, responding to what he apparently intepreted as language in the opinion of the Court construing Congress' power under Sec. 5 of the Fourteenth Amendment to be limited by the state action requirement, appended a lengthy statement, which a majority of the Justices joined, arguing that Congress' power was broader. 103 ''Although the Fourteenth Amendment itself . . . 'speaks to the State or to those acting under the color of its authority,' legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, Sec. 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection.'' 104 The Justice throughout the opinion refers to ''Fourteenth Amendment rights,'' by which he meant rights which, in the words of 18 U.S.C. Sec. 241, are ''secured . . . by the Constitution,'' i.e., by the Fourteenth Amendment through prohibitory words addressed only to governmental officers. Thus, the equal protection clause commands that all ''public facilities owned or operated by or on behalf of the State,'' be available equally to all persons; that ac cess is a right granted by the Constitution, and Sec. 5 is viewed ''as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens.'' Within this discretion is the ''power to determine that in order adequately to protect the right to equal utilization of state facilities, it is also appropriate to punish other individuals'' who would deny such access. 105  

It is not clear, following changes in Court personnel and in the absence of definitive adjudication, whether this expansion of Congress' power still commands a majority of the Court. 106 If the Court adheres to the expansion, it is not clear what the limits and potentialities of the expansion are, whether it is only with regard to ''state facilities'' that Congress may reach private interfering conduct, and what ''rights'' are reasonably and properly encompassed within the concept of ''Fourteenth Amendment rights.''

Footnotes

[Footnote 82] Section 3 of the Civil Rights Act of 1866, 14 Stat. 27, 28 U.S.C. Sec. 1443. See Virginia v. Rives, 100 U.S. 313, 318 (1880); Strauder v. West Virginia, 100 U.S. 303 (1880). The statute is of limited utility because of the interpretation placed on it almost from the beginning. Compare Georgia v. Rachel, 384 U.S. 780 (1966), with City of Greenwood v. Peacock, 384 U.S. 808 (1966).

[Footnote 83] 18 U.S.C. Sec. Sec. 241, 242. See Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951); United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383 U.S. 787 (1966); United States v. Johnson, 390 U.S. 563 (1968).

[Footnote 84] 42 U.S.C. Sec. 1983. See Monroe v. Pape, 365 U.S. 167 (1961); see also 42 U.S.C. Sec. 1985(3), construed in Griffin v. Breckenridge, 403 U.S. 88 (1971).

[Footnote 85] Ex parte Virginia, 100 U.S. 339 (1880).

[Footnote 86] United States v. Price, 383 U.S. 787 (1966).

[Footnote 87] Both 18 U.S.C. Sec. 242 and 42 U.S.C. Sec. 1983 contain language restricting application to deprivations under color of state law, whereas 18 U.S.C. Sec. 241 lacks such language. The newest statute, 18 U.S.C. Sec. 245, contains, of course, no such language. On the meaning of ''custom'' as used in the ''under color of'' phrase, see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

[Footnote 88] E.g., the problem of ''specific intent'' in Screws v. United States, 325 U.S. 91 (1945), and Williams v. United States, 341 U.S. 97 (1951), and the problem of what ''right or privilege'' is ''secured'' to a person by the Constitution and laws of the United States, which divided the Court in United States v. Williams, 341 U.S. 70 (1951), and which was resolved in United States v. Price, 383 U.S. 787 (1966).

[Footnote 89] 18 Stat. 335, Sec. Sec. 1, 2.

[Footnote 90]   109 U.S. 3 (1883). The Court also rejected the Thirteenth Amendment foundation for the statute, a foundation revived by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).

[Footnote 91]   109 U.S. at 11 . Justice Harlan's dissent reasoned that Congress had the power to protect rights secured by the Fourteenth Amendment against invasion by both state and private action, but also viewed places of public accommodation as serving a quasi-public function which satisfied the state action requirement in any event. Id. at 46-48, 56-57.

[Footnote 92]   92 U.S. 542 (1876). The action was pursuant to Sec. 6 of the 1870 Enforcement Act, ch. 114, 16 Stat. 140, the predecessor of 18 U.S.C. Sec. 241.

[Footnote 93]   106 U.S. 629 (1883). The case held unconstitutional a provision of Sec. 2 of the 1871 Act, ch. 22, 17 Stat. 13.

[Footnote 94] See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v. United States, 203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281 (1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127 (1903).

[Footnote 95] United States v. Cruikshank, 92 U.S. 542, 552 -53, 556 (1876). The rights which the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right to vote free of interference on racial grounds in a federal election.

[Footnote 96] Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 (1941).

[Footnote 97] Logan v. United States, 144 U.S. 263 (1892).

[Footnote 98] In re Quarles, 158 U.S. 532 (1895). See also United States v. Waddell, 112 U.S. 76 (1884) (right to homestead).

[Footnote 99] United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403 U.S. 88 (1971).

[Footnote 100]   341 U.S. 70 (1951).

[Footnote 101]   383 U.S. 787 (1966) (due process clause).

[Footnote 102]   383 U.S. 745 (1966) (equal protection clause).

[Footnote 103] Justice Brennan's opinion, id. at 774, was joined by Chief Justice Warren and Justice Douglas. His statement that ''[a] majority of the members of the Court expresses the view today that Sec. 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy,'' id. at 782 (emphasis by the Justice), was based upon the language of Justice Clark, joined by Justices Black and Fortas, id. at 761, that inasmuch as Justice Brennan reached the issue the three Justices were also of the view ''that there now can be no doubt that the specific language of Sec. 5 empowers the Congress to enact laws punishing all conspiracies--with or without state action--that interfere with Fourteenth Amendment rights.'' Id. at 762. In the opinion of the Court, Justice Stewart disclaimed any intention of speaking of Congress' power under Sec. 5. Id. at 755.

[Footnote 104] Id. at 782.

[Footnote 105] Id. at 777-79, 784.

[Footnote 106] The civil statute paralleling the criminal statute held unconstitutional in United States v. Harris, 106 U.S. 629 (1883), is 42 U.S.C. Sec. 1985(3), similarly derived from Sec. 2 of the 1871 Act, 17 Stat. 13, and it too lacks a ''color of law'' requirement. This provision was read into it in Collins v. Hardyman, 341 U.S. 651 (1951), to avoid what the Court then saw as a substantial constitutional problem. In Griffin v. Breckenridge, 403 U.S. 88 (1971), ''color of law'' was read out of the statute. While it might be ''difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons . . . there is nothing inherent in the phrase that requires the action working the deprivation to come from the State.'' Id. at 97. What the language actually required, said the unanimous Court, was an ''intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.'' Id. at 102. As so construed, the statute was held constitutional as applied in the complaint before the Court on the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress' Sec. 5 powers. Id. at 107.