or implied, to legislate for the enforcement of such a guarantee which does not extend to the passage of laws for the suppression of crime within the States. The enforcement of the guarantee does not require or authorize Congress to perform the duty that the guarantee itself supposes it to be the duty of the State to perform and which it requires the State to perform.

That is the end of the quotation from United States v. Cruikshanks. The opinion in the Harris case continues:

When the case of the United States v. Cruikshanks came to this Court, the same view was taken here. The Chief Justice delivering the opinion of the Court in that case said:

"The Fourteenth Amendment prohibits a State from depriving any persons of life, liberty, or property without due process of law or from denying to any person the equal protection of the law, but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guarantee against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.

"The duty of protecting all its citizens in the enjoyment of an equality of right was originally assumed by the States and it remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees and no more. The power of the national Government is limited to this guarantee."

So in Virginia v. Rives, 100 id. 313, it was declared by this court, speaking by Mr. Justice Strong, that "these provisions of the Fourteenth Amendment have reference to State action exclusively and not to any action of private individuals.' These authorities show conclusively that the legislation under consideration finds no warrant for its enactment in the Fourteenth Amendment.

When

The language of the amendment does not leave this subject in doubt. the State has been guilty of no violation of its provisions, when it has not made or enforced any law, abridging the privileges or immunities of citizens of the United States, when no one of its departments has deprived any person of life, liberty or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws, when on the contrary the laws of the State as enacted by its legislature and construed by its judicial and administered by its Executive Departments recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon Congress.

Section 5519 of the revised statutes is not limited to take effect only in case the State shall abridge the privileges or immunities of citizens of the United States or deprive any person of life, liberty or property without due process of law or deny to any person the equal protection of the law.

It applies no matter how well the State may have performed its duty. Under it, private persons are liable to punishment for conspiracy to deprive anyone of the equal protection of the laws enacted by the State. That was quoted in the indictment in this case "In the indictment in this case, for instance, which would be a good indictment under the law, if the law itself were valid, there is no intimation that the State of Tennessee has passed any law or done any act forbidden by the Fourteenth Amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the State of Tennessee of the equal protection accorded them by the laws of Tennessee. As therefore the section of the law under consideration is without reference to the laws of the State or their administration by her officers, we are clear in the opinion that it is not warranted by any clause

And I emphasize "by any clause”—

in the 14th amendment to the Constitution.

Now, Mr. Attorney General, if that statement which I just read from United States v. Harris constitutes a correct interpretation of the 14th amendment, then does it not necessarily follow that title V of this bill is clearly unconstitutional?

Attorney General KATZENBACH. I can answer that question best, Mr. Chairman, by saying that if the Supreme Court at this term had written the Harris case, and in-what was the date of that, about 1882-and in 1882 had written the Guest case instead of in this term, then I doubt that we would be here urging this legislation.

65-506-66-pt. 1-9

Senator ERVIN. Mr. Attorney General, as a matter of fact

Attorney General KATZENBACH. I do not think it represents a correct statement of the 14th amendment. I can distinguish the case. We distinguished it in a brief in the Guest case. I think that is possible to do.

We can make some fine points of distinction here with respect to this case. I can point out to you that the statute involved talked about equal protection of the laws and clearly the right that was involved here was a due process right. I can make that distinction. But I think what is more important, Senator, is to recognize that it is a living Constitution.

I think that the 14th amendment in its history gave a good deal of indication that at least many Members of Congress in all legislative history, that it is somewhat ambiguous, and many Members of Congress thought section 5 vested quite broad powers to implement this. There followed a period of time, immediately after the 14th amendment was passed, where it seems to me that this case-I think this is probably the strongest case that you have in this regard. I think it is stronger than Cruikshanks which preceded it. I think there was a period of time when the States were attempting to adjust to this, where a view of the 14th amendment, a rather restrictive and narrow view of the 14th amendment was taken.

For me it is extremely important to note, as indeed it was noted in the Harris case itself, that there has been no background of the State's failure to fulfill its obligations under the 14th amendment, and that was noted in the language which you read in that respect. It is also language you can find in the civil rights cases which I daresay we will get to.

Senator ERVIN. The Court was speaking, Mr. Attorney General, of the allegations of the indictment.

Attorney General KATZENBACH. No, in the language

Senator ERVIN. Concerning the background of the State's failure to fulfill its obligations the Ku Klux Klan had originated prior to this time in the State of Tennessee, in Pulaski, and there had been all kinds of racial violence in Tennessee.

Attorney General KATZENBACH. Yes, sir; but

Senator ERVIN. Much worse than any racial violence that we have

now.

Attorney General KATZENBACH. I believe I am correct in saying that it wasn't until the late 1880's, maybe 1887, around in there, that you began to get the first of your formal segregation laws in clear violation of the 14th amendment, when you began having your devices with respect to voting in some of these States.

When we had that history, starting I would say, in the late 1880's, and it seems to me that it is also accurate to say that perhaps beginning with the Gwynn case in 1915 and then, going down the line, that a broader view of the 14th and 15th amendments has been taken.

As a matter of fact, it is an interesting aside, perhaps, to note that Mr. Justice Bradley, in the quotation that you read here, did feel that the 15th amendment did apply to purely private action with respect to its enacting clause.

Senator ERVIN. Mr. Attorney General, I hate to engage in controversy with you on that, but I think he said exactly the opposite in the Civil Rights Cases of 1883.

Attorney General KATZENBACH. I believe

Senator ERVIN. I know none of us can carry all that judges have said in our heads, but I challenge anybody to find that Justice Bradley ever in any opinion said anything to indicate that he thought these things were interfered with by the 13th amendment. He considered the 13th amendment and the 14th amendment and the 15th amendment all in the Civil Rights Cases where he wrote the majority opinion and repudiated the idea that any of them support such legislation as that proposed by this bill.

Attorney General KATZENBACH. Speaking of the 15th amendment in that same case, I will read the words of Mr. Justice Bradley: Considering as before intimated that the amendment, notwithstanding its negative form, substantially guarantees the equal right to vote to citizens of every race and color, I am inclined to the opinion that Congress has the power to secure that right not only as against the unfriendly operation of State law but against outraged violence and combinations on the part of individuals, irrespective of State laws. Such was the opinion of Congress itself in passing the law at a time when many of its Members were the same and were consulted on the original form of the amendment in proposing the States.

Senator ERVIN. He is speaking there of the right to vote.
Attorney General KATZENBACH. Yes.

Senator ERVIN. Which rests upon

Attorney General KATZENBACH. Fifteenth amendment.
Senator ERVIN. The second section of the first article.

Attorney General KATZENBACH. Which I believe, sir, he was speaking of the 15th amendment when he said this.

Senator ERVIN. Which case are you reading from?

Attorney General KATZENBACH. I was reading from the Cruikshank case in the lower court, the same one that you are citing here in the United States v. Harris, and it appears in 1 Woods, page 324.

Senator ERVIN. It was held in Cruikshank that the indictment was not valid under the 15th amendment, wasn't it?

Attorney General KATZENBACH. Yes, sir.

Senator ERVIN. Because it wasn't based upon the allegation of denial of the right to vote on the basis of race or previous condition of servitude.

Attorney General KATZENBACH. My point was an aside, but I said it was interesting to note that Mr. Justice Bradley, who took this view of the 14th amendment, took a somewhat different view of the 15th amendment.

Senator ERVIN. But it was held in that case that the 15th amendment didn't apply.

Attorney General KATZENBACH. Yes, sir; that is right.

Senator ERVIN. Because

Attorney General KATZENBACH. Because the indictment didn't say anything about race.

Senator ERVIN. That is right.

Attorney General KATZENBACH. Yes. The indictment had said something but it wasn't the issue as to whether or not they could reach private action.

Senator ERVIN. Anyway, Mr. Attorney General, do you think that what I read from United States v. Harris can possibly stand together, both of them being true?

Attorney General KATZENBACH. Yes, sir; I think they can stand together. As I say, I think that case can be distinguished. I

told you the ground for distinction, but I was trying to point out, Senator, that I think, and I think that you think, that the Supreme Court would uphold section 5 of this law.

Senator ERVIN. I am taking the position the Supreme Court ought not to uphold most of its provisions. I am taking the position that if the Supreme Court upholds this title in most of its provisions, it will be tantamount to the Supreme Court amending the Constitution by changing the meaning of the 14th amendment and changing the meaning of every decision down to this date construing the 14th amendment.

Attorney General KATZENBACH. Yes, sir; my recollection is you expressed the same doubts

Senator ERVIN. Yes.

Attorney General KATZENBACH. With respect to the 1964 act, and the same doubts with respect to the 1965 act.

Senator ERVIN. I did with respect to certain features of both of them, but it turns out that I had entirely too much confidence in the judicial stability of the Supreme Court.

Attorney General KATZENBACH. What I don't really understand, Senator, is you think it is equally possible, just as a hypothetical proposition here, do you think it is equally possible that the Court could have been wrong in the Harris case as against the Court being wrong in the Guest case?

Senator ERVIN. No.

Attorney General KATZENBACH. When you cite the Harris case for yourself, I cite the Guest case on my side. Wouldn't you say at least we start out from the proposition that there is no particular reason why the Court was more right in the one case than in the other?

Senator ERVIN. I don't accept that because, as you and I agreed this morning, the 14th amendment has nothing whatever to say in respect to the action of individuals. It prohibits the State from denying any person due process of law, or denying him the equal protection of the laws, or denying him the privileges and immunities of Federal citizenship. That is all it does.

Certainly, it is illogical, when the 14th amendment doesn't cover private action to say that Congress, under the power to enforce the amendment's provisions, can reach private action. That is not only doing violence to the Constitution, but is doing violence to the English language and is doing violence to logic.

Attorney General KATZENBACH. Senator, we agreed that the 14th amendment, absent section 5, without implementing legislation, clearly is a simple prohibition upon the State. I have taken the view here, and I think it is the right view-obviously, you don't-I have taken the view that in the implementing legislation, it is possible for Congress to make sure that those rights are insured.

I think that is strengthened, and this is the point I was trying to make, is strengthened when you have the background and history of not only a failure on the part of States to insure that, but actual practices designed to deny those rights.

I don't believe that the people who drafted the 14th amendment and gave this power to implement by legislation to the Federal Government in section 5, intended, as I think your argument would carry, to say they could say no more than what the 14th amendment itself says, because the 14th amendment is drafted in very broad terms, as it says, no State can do this, that or the other thing.

I fail to see that you give very much scope to the implementation of this, if you say all it can do is restate what was first said.

Now I take the view that the important thing here is, these were rights, these are rights guaranteed to people, and that if the States, if there is a history, particularly, if there is a history where the States had not been securing these rights to the people, under section 5 as it was explicitly put in there, it was necessary and important to put in legislation. It uses the word "appropriate," I believe. I think the legislation is much more appropriate after many, many years of denial than it might have been at the time of the Civil Rights Act, the 1866 session and that period of time. I believe that is the view that the Supreme Court takes today. I doubt if that was the view the Supreme Court took at the time of the Harris case.

Senator ERVIN. We used to have the 18th amendment, which gave Congress the power to legislate to enforce the provision abolishing the manufacture, transportation, and sale of alcoholic beverages. Do you think Congress under that amendment could pass a law to prohibit people from raising bantam chickens?

Attorney General KATZENBACH. No, sir; but you will recall the Everett Brewery case. The legislation that Congress enacted went to the prohibition of the sale of alcohol for medicinal purposes. And you will recall the argument was made in that case, not unlike the argument you are making now, that it went beyond the language of the amendment, and that, again, was upheld by the Court.

Senator ERVIN. Section 5 of the 14th amendment merely says that Congress can enforce by appropriate legislation the provisions of the amendment.

Attorney General KATZENBACH. Yes, sir.

Senator ERVIN. And the provisions of the amendment merely prohibit State action, and that is exactly what United States v. Harris said, and exactly what the Cruikshank case said, that where Congress went beyond the enforcement of prohibition of State action forbidden by the first section, it was transcending its power. And I don't think there is any question that under those two decisions, most of title V of this bill is clearly invalid.

Now, title V does not have

Attorney General KATZENBACH. Senator, I think, to repeat, that the Supreme Court today, after all of this history, which I find extremely relevant to the decision, if today it had written the exact opinion of the Harris case and say, at the last term, decided the Cruikshank case, I don't think I would be here saying that I believe that this legislation-I might still believe that the Court was wrong but I would not believe that the Court would uphold this legislation. I think that these cases were wrongly decided even then, but I think it would be very wrongly decided if they were to be decided now after all these years of history.

Senator ERVIN. Would you be here advocating the enactment of title V, if six members of the Supreme Court had not indulged in obiter dicta in the Guest case?

Attorney General KATZENBACH. Yes, sir.

Senator ERVIN. You would?

Attorney General KATZENBACH. I would, subject to this qualification. If the Court, this present Court, in the Guest case, completely rejected the argument that we made, and if it had said in obiter dicta