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discussion Senate bill 3296, which is denominated the Civil Rights Act of 1966.
Title I thereof amends chapter 121 of title 28, United States Code. Chapter 121 is entitled “Juries; Trial by Jury.” Its provisions are confined to grand and petit juries in the district courts of the United States.
Title II has as its first section :
No person or class of persons shall be denied the right to serve on grand and petit juries in any state court on account of race, color, religion, sex, national origin or economic status.
The quoted section indicates the purpose of that title II, and indicates to me its utter invalidity on the basis of presently established rules of law.
Title III is entitled "Nondiscrimination in Public Education and other Public Facilities."
Title IV has as its first section :
It is the policy of the United States to prevent, and the right of every person to be protected against, discrimination on account of race, color, religion, or national origin in the purchase, rental, lease, financing, use and occupancy of housing throughout the nation.
The quoted section indicates the purpose of that title IV, and, too, to me indicates its utter invalidity as tested by the Constitution of the United States as presently construed.
Title V is entitled "Interference with Rights."
Evidently it seeks to supplant or amend section 241 of title 18, United States Code.
Such seeking doubtless stems from the decision of the Supreme Court of the United States in United States v. Guest et al. (March 28, 1966) 383 U.S. 745, 86 S. Ct. 1170.
In that case, I was appointed by the Supreme Court of the United States to represent one of the appellees. Therefore, I have more than ordinary interest in and familiarity with the case.
It was argued orally and by brief November 9, 1965. It was decided almost 5 months later, March 28, 1966. The time factor and the opinions in the case demonstrate the thorough consideration given by the Court to the problems and questions there involved.
Mr. Justice Stewart delivered the opinion of the Court, reversing and remanding the case to the district court for further proceedings consistent with that opinion for the reasons stated.
Mr. Justice Clark wrote a concurring opinion in which Mr. Justice Black and Mr. Justice Fortas joined.
Mr. Justice Harlan wrote an opinion concurring in part and dissenting in part (86 S. Ct. at p. 1180 et seq.).
Mr. Justice Brennan wrote an opinion in which the Chief Justice and Mr. Justice Douglas joined, concurring in part and dissenting in part (86 S. Ct. at p. 1187 et seq.).
Here is the following language in the concurring opinion of Mr. Justice Clark, supra, in which Justices Black and Fortas concurred (86 S Ct. at p. 1180):
The Court carves out of its opinion the question of the power of Congress, under subsection 5 of the Fourteenth Amendment, to enact legislation implementing the Equal Protection Clause or any other provision of the Fourteenth Amendment. The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities. My Brother Brennan, however, says the Court's disposition constitutes an acceptance of appellees' aforesaid contention as to subsection 241. Some of his language further suggests that the Court indicates sub silentio that Congress does not have the power to outlaw such conspiracies.
Although the Court specifically rejects any such connotation, ante, p. 1176, it is, I believe, both appropriate and necessary under the specific language of subsection 5 empowers the Congress to enact laws punishing all conspiracies—with or without state action—that interfere with Fourteenth Amendment rights.
That suggests the question: What is a "14th amendment right”?
While that will be more fully discussed later in this memorandum, I suggest that actions of private individuals against private individ uals with respect to rights which the Constitution merely guarantees from interference by a State cannot be classified as 14th amendment rights.
The opinion of Justice Stewart in the Guest case (86 S.Ct. 1170, at 1179) cites United States v. Moore, 129 Fed. 630, 633. Of course I do not know exactly what language at page 633 he had in mind, but I call attention to this categorical statement of District Judge Jones at
The power conferred upon Congress by the Constitution concerning these rights in some instances, as under the Fourteenth Amendment, is corrective merely of invasion of them by state law or authority.
The second headnote in that case commences (129 Fed. at p. 630): The fourteenth amendment of the federal constitution * * * adds nothing to the rights of any citizen against another, but merely furnishes additional guaranties against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society.
District Judge Jones who wrote that opinion was Judge Thomas Goode Jones, of Montgomery, Ala., appointed to the Federal bench by President Theodore Roosevelt in the early part of the century. In April of 1865, it is interesting to note, particularly in the light that his opinion was cited by Mr. Justice Stewart, Judge Jones had been aide to Gen. John B. Gordon at the surrender at Appomattox. General Gordon was afterwards Governor of Georgia and a U.S. Senator from Georgia.
At page 1176 of the opinion in the Guest case as reported in 86 Supreme Court Reporter is this cogent language:
It is a commonplace that rights under the Equal Protection Clause itself arise only where there has been involvement of the State or of one acting under the color of its authority. The Equal Protection Clause "does not * * * add anything to the rights which one citizen has under the Constitution against another." United States v. Cruikshank, 92 U.S. 542, 554–555, 23 L. Ed. 588. As Mr. Justice Douglas more recently put it, “The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals" (United States v. Wiliams, 341 U.S. 70, 92, 71 S. Ct. 581, 593, 95 L. Ed. 758 (dissenting opinion)).
Senator MCCLELLAN. May I interrupt to say now it is your contention here that the Congress would be exceeding its authority in undertaking to protect one individual against a wrong committed by another individual, a wrong which might trespass upon that individual's rights?
Mr. Bloch. That has been the construction of the 14th amendment from the beginning.
Senator McCLELLAN. Up until now.
Senator McCLELLAN. We do have a practice up here of reversing all previous precedents, you know.
Mr. Bloch. Well, they had an opportunity
Senator McCLELLAN. You would not be greatly surprised if it happened again, would you?
Mr. Bloch. All we lawyers can do with it is deal with it as we find it.
Senator MCCLELLAN. We deal with it as lawyers and the court deals with it as the final authority.
Mr. BLOCH. They have the right to take it all back.
Senator McCLELLAN. Go ahead and make your case. Proceed. I can sympathize with
you. Mr. Bloch. Shall I go ahead, sir? Senator McCLELLAN. Yes.
Mr. Bloch. This has been the view of the Court from the beginning. United States v. Cruikshank, supra; United States v. Harris, 106 U.S. 629 (1882); Civil Rights cases, 109 U.S. 3 (1883); Hodges v. United States, 203 U.S. 1 (1905); United States v. Powell, 212 U.S. 564 (1908). It remains the Court's view today. See e.g. Evans v. Newton, 382 U.S. 296 (1965); United States v. Price, 383 U.S. 786, 86 S. Ct. 1152 (1966).
While we are discussing title V, we may as well complete the discussion as to that title, applying to it the rule just emphasized as the Court's view, as of March 28, 1966.
That rule is summarized in headnote 6 of the Guest case as it appears 86 S. Ct. 1171, as follows:
Equal protection clause of Fourteenth Amendment speaks to state or to those acting under color of its authority.
The eighth and ninth headnotes are:
Rights under equal protection clause arise only where there has been involvement of state or of one acting under color of its authority; equal protection clause does not add anything to rights which one citizen has under constitution against another.
That is not quite 3 months ago that they said that.
Fourteenth Amendment protects individual from state action, not against wrongs done by individuals.
I repeat this isn't merely "old law.” It is a restatement of "old law” as announced by the Supreme Court less than 3 months ago.
Senator McCLELLAN. Was that decision unanimous ?
Mr. BLOCH. That is the decision in the Price case and in the Guest case.
Senator McCLELLAN. Was it a unanimous decision of the Court? Mr. Bloch. No, sir, the Price case was practically unanimous. There was a slight what may be called a dissent by Justice Black. But the Guest case had all these opinions that I have pointed to in my statement, and I analyze them here in this memorandum just a little later, because it is right hard to tell just who decided what, as I will point out to you in just a few minutes.
The opinion of the Court of Mr. Justice Stewart in that case shows clearly that he was of the opinion that the indictment at issue there
"in fact contains an express allegation of State involvement sufficient at least to require the denial of a motion to dismiss.” He proceeded to show (p. 177) what that allegation was, and concluded:
Although it is possible that a bill of particulars, or the proofs if the case goes to trial, would disclose no cooperative action of that kind by officials of the State, the allegation is enough to prevent dismissal of this branch of the indictment.
So the chairman will see that, as I construe it, the reason that Judge Bootle's decision in the Guest case was reversed by Court was because the opinion of the Court, written by Mr. Justice Stewart, concluded that there was a sufficient averment in the indictment to constitute a charge of State action, State participation.
Now therefore, having been reversed on that ground, what the other justices may have said with respect to whether or not State action was required would be purely dicta. I interpolate this in my statement. It is not in the written statement. That case is coming up for trial again in the District Court of the United States for the Middle District of Georgia sitting in Athens on June 27, I believe it is. I make that statement from having read it in the newspapers. I have no further connection with the case. I was simply appointed by the Court to represent one defendant there who had no lawyer, who had been admitted to the Court, and after the decision my connection with the case ceased, and other counsels were appointed to do the trial of it.
True it is, that the concurring opinion of Mr. Justice Clark concludes:
* * there now can be no doubt that the specific language of subsection 5 (of the amendment) empowers the Congress to enact laws punishing all conspiracies—with or without state action that interfere with the Fourteenth Amendment rights.
I interpolate this. The chairman may have noticed that I emphasized as I read, and I will show you why just a little later, I emphasized the phrase "punishing all conspiracies.”
True it is, too, that the opinion of Mr. Justice Brennan, with whom the Chief Justice and Mr. Justice Douglas joined, which opinion concurs in part and dissents in part, contains similar or even stronger language.
True it is, too, that that opinion contains these words: But since the limitation on the statute's effectiveness derives from the Congress failure to define with any measure of specificity-the rights encompassed, the remedy is for Congress to write a law without this defect.
Evidently it is now suggested that Congress accept that invitation by enacting title V.
Inasmuch as Justice Clark used the phrase "14th amendment rights," as do the opinions of some of the other justices (e.g., p. 1175, second column) it seems that the first facet in a discussion of title V ought to be a determination, or certainly a consideration of what is a 14th amendment right?
There can be no doubt in my mind but that 14th amendment rights are these and only these:
1. The right of a citizen not to have his privileges or immunities abridged by the making or enforcement by a State of any law;
2. The right of all persons not to be deprived by any State of life, liberty, or property without due process of law;
3. The right of all persons within the jurisdiction of a State not to be denied by that State the equal protection of the laws. The second facet in a discussion of title V must be a complete realization that in the Guest case the Court was considering a statute which sought to punish a conspiracy (18 U.S.C. 241) and an indictment which specifically charged a conspiracy. The Court took pains (p. 1175) to point out that "The gravamen of the offense is conspiracy.'
Also the opinion of the Court (p. 1176) contains these words:
* * * nothing said in this opinion goes to the question of what kinds of other and broader legislation Congress might constitutionally enact under subsection 5 of the Fourteenth Amendment to implement that clause (the Equal Protection clause) or any other provision of the Amendment.
[In Pettibone v. United States, 148 U.S. 197, 203, the Court said:]
A conspiracy is sufficiently described as a combination of two or more persons, by concerted action to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means * *
Title V in section 501 of the proposed bill thereof departs from title 18 U.S.C., subsection 241 involved in the Guest case. It departs from any rules of law governing conspiracies. It seeks to make certain acts substantive crimes.
Illustrating, section 501(a) (5), carved out of its surroundings, would read:
Whoever, whether or not acting under color of law, by force or threat of force(a) injures, intimidates, or interferes with, or attempts to injure, intimidate, or interfere with any person because of his race, color, religion, or national origin while he is engaging or seeking to engage in—(5) selling, purchasing, renting, leasing, occupying, or contracting or negotiating for the sale, rental, lease or occupation of any dwelling; shall be fined not more than $1,000.00 or imprisoned not more than one year, or both; and if bodily injury results shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.
If that is enacted into law, then a private person, who hears that a Buddhist is about to rent a house next door to him, goes to that Buddhist and says: “I hear you are negotiating to rent a house next door to me; I warn you that if you rent it and occupy it, harm will come to you and
your family,” he would be guilty of a Federal crime, and subject to the punishment quoted.
I say to you that there is nothing in the Constitution of the United States which authorizes the Congress to enact such a law.
I have carved out and quoted 501 (a) (5).
I say to you that under the law of the land as declared in the Guest case Congress has no constitutional power to enact any part of proposed section 501 of title V for all of it is addressed to private persons, not acting under color of law.
The Supreme Court made it abundantly clear in the Guest case that
The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals * * * This has been the view of the Court from the beginning * *. It remains the Court's view today (March 28, 1966).
Decided that same day was United States v. Price et al, that was a Mississippi case. The Guest case was a Georgia case. The Price case was a Mississippi case (86 Sup. Ct. 1152) in which Mr. Justice Fortas wrote for the Court. There was no dissent except perhaps a short