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one of Mr. Justice Black (p. 1163). At page 1160 (of 86 Sup. Ct.) the Court said:
As we have consistently held "The Fourteenth Amendment protects the individual against state action not against wrongs done by individuals." * * *
In the present case, the participation by law enforcement officers, as alleged in the indictment, is clearly State action, as we have discussed and it is therefore with [sic] the scope of the 14th amendment.
In other words, I interpolate, the Price case, the indictment was held good because it charged the participation of State officers in what the individuals did out there in Mississippi as charged, were alleged to have done as charged in the indictment.
Just after this quotation, the Court (speaking through Mr. Justice Fortas) has, in the words which I now quote, stated the question which was presented for decision in the Price case:
The argument, however, of Mr. Justice Frankfurter's opinion in Williams I. upon which the District Court rests its decision, cuts beneath this. It does not deny that the accused conduct is within the scope of the Fourteenth Amendment, but it contends that in enacting subsection 241, the Congress intended to include only the rights and privileges conferred on the citizen by reason of the "substantive" powers of the federal government—that is, by reason of federal power operating directly upon the citizen and not merely by means of prohibition of state action.
This—and what follows—is important particularly because of a statement made by the Attorney General before Subcommittee No. 5 in support of H.R. 14765 on May 4, 1966.
Said he: The really important fact about the Guest decision, however, is that six justices declared that Congress has the power under section 5 of the Fourteenth Amendment, to reach such purely private misconduct if it chooses to do so.
Page 25 of his statement.
I do not so read what the six Justices said in their varying opinions. I have referred to them hereinbefore, and shall again hereinafter.
I do know that the Price case (from Mississippi) was argued practically contemporaneously with the Guest case (November 9, 1965) and decided the same day (March 28, 1966).
Practically speaking there is but one opinion in the Price case that of Justice Fortas.
There is no doubt of the meaning and intent of that opinion.
The present application of the statutes at issue (title 18 subsections 241, 242) does not raise fundamental questions of federal-state relationships. We are here concerned with allegations which squarely and undisputably involve state action in direct violation of the mandate of the Fourteenth Amendment-that no state shall deprive any person of life or liberty without due process of law. This is a direct, traditional concern of the federal government.
And almost the very last sentence of the opinion is:
Today, a decision interpreting a federal law in accordance with its historical design, to punish denials by state action of constitutional rights of the person can hardly be regarded as adversely affecting “the wise adjustment between state responsibility and national control ..."
Parenthetically, there is an historical error in Justice Fortas' opinion as reported at page 1162 of 86 Sup. Ct. Reporter. There it is stated :
On June 13, 1866, the Fourteenth Amendment was proposed, and it was ratified the next month.
As a matter of historical fact, it was proposed June 16, 1866, but it was by no means ratified the next month. It was not ratified until 2 years and a month had elapsed, to wit, in July 1868. (See U.S.C.A.)
I am advised, since I wrote that, by the Reporter of Decisions of the Supreme Court that this error was detected and immediately corrected. That ratification came only after considerable arm twisting in certain of the late Confederate States.
Justice White's name is not mentioned in the opinions in the Guest case. Justice Stewart delivered the opinion of the Court.
Justice Harlan wrote an opinion, concurring in part and dissenting in part. It is quite clear from it that he did not declare or believe that Congress has power, under section 5 of the 14th amendment, to reach purely private misconduct if it chooses to do so.
So the statement of the Attorney General as to what "six justices declared” in the Guest case must have as its basis something written by Mr. Justice Clark, with whom Mr. Justice Black and Mr. Justice Fortas joined (p. 1180 of 86 Sup. Ct.) or something written by Mr. Justice Brennan with whom the Chief Justice and Mr. Justice Douglas joined. (86 Sup. Ct., pp. 1187, et seq.)
Previously, I have quoted what Mr. Justice Clark had to say in that respect (p. 1180).
So, it remains to inquire what Mr. Justice Brennan had to say, and then it will remain for us to learn what Congress will have to say on the subject.
It is to be hoped that Congress, in having its say and in enacting any legislation will recall that since the Civil Rights cases, 109 U.S. 3, were decided in 1883, almost a century ago, it has been the law of the land—“that Congress power under subsection 5 is confined to the adoption of 'appropriate legislation for correcting the effects of * prohibited state law and state acts, and thus to render them effectually null, void, and innocuous."
Those words were uttered by the Supreme Court of the United States on the 15th day of October 1883. Many Congresses have come and
gone since; many Presidents have come and gone; many Chief Justices and Associates Justices have come and gone; opportunities to amend the Constitution to correct any erroneous opinion of the Court if it were erroneous, have come and gone, but it wasn't until March 28, 1966, that any Justice of the Supreme Court of the United States even went so far as to say, after quoting the above words from the Civil Rights Cases, "I do not accept—and a majority of the Court rejects—this interpretation of section 5."
That interpretation has been the law of the land for 83 years.
The opinion of the Court in the case to which Justice Brennan's opinion is appended categorically states: "It remains the Court's view today'
If at this late day that time-honored view is to be repealed, let it be done as provided in article V of the Constitution.
Too, Justice Brennan's opinion seems to have as its broadest thesis only, "For me, the right to use State facilities without discrimination on the basis of race is, within the meaning of section 241, a right created by, arising under and dependent upon the 14th amendment and hence is a right 'secured' by that amendment” (p. 1190 of 86 S. Ct.)
Previously (p. 1188) in that same opinion, he had written:
I am of the opinion that a conspiracy to interfere with the right to equal utilization of state facilities ... is a conspiracy to interfere with “a right .. secured ... by the Constitution."
If those and similar words constitute the basis of the Attorney General's statement, I submit that they utterly fail to support legally title V in its entirety. They fail for at least three reasons:
1. Title V goes beyond punishing conspiracies; 2. Title V goes beyond punishing discriminations on the basis of race"; it seeks to punish discriminations (injuries, intimidations or interferences) on account of “race, color, religion, or national origin";
3. Title V goes beyond punishing discriminations in the use of “State facilities.” In this respect, particular attention is called
to title V, section 501(a) (9), and its breadth. Under that section, if a person sought admission to a "motion picture house,” and another person said to him, “You can't go in there; you are not a Christian,” that latter person would be guilty of a Federal crime! That is reducing it to its least common denominator.
Examine closely, too, section 501(a) (7).
Titles I and II-these may logically be discussed together although title I deals with juries in the Federal courts, and title II with juries in State courts.
In the original Constitution, article III, section 2, paragraph 3, it is provided that the trial of all crimes, except in cases of impeachment, shall be by jury."
In the Bill of Rights, amendment VI provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and districts wherein the crime shall have been committed. Amendment VII provides for trial by jury in suits at common law where the value in controversy exceeds $20.
The origins of the right of trial by jury in criminal cases antedate Magna Carta.
Amendment VII answered a question which had been hotly debated by the delegates in the Federal Convention of 1737. Hugh Williamson of North Carolina and Elbridge Gerry of Massachusetts had urged the adoption in the Constitution of a general provision to safeguard the jury system in civil cases. The proposal was defeated not because the delegates opposed the use of juries in such cases but because they felt that differing practices of the States made it impossible to frame a general rule.
What were the practices of the various States at the time of the adoption of the Constitution? What were the practices in the years just after the adoption of the Constitution? And what were the practices in later years in States subsequently admitted to the Union?
I have particular reference to qualifications of jurors. There, Mr. Chairman, you will find in the memorandum about five pages which are devoted to the laws of the various States with respect to the quali
fications of jurors in State courts. I divided them into three classes of States. I had an examination made of the old laws as to what were the qualifications of jurors as to three groups of States :
One, the group of States, the 13 Original States which adopted the Constitution. What qualifications did they have?
Secondly, I took the States which were admitted to the Union shortly after 1789. What laws did they have when they came into the Union?
Thirdly, to show a continuity of practice, I took the States which had been most recently admitted, Arizona and New Mexico. I did not take Hawaii and Alaska, I believe, but I did have Arizona and New Mexico and some of the other States more recently admitted so as to show, and it does show, almost without exception, that every one of the 13 Original States, every State admitted shortly after the adoption of the Constitution, such as Mississippi, Alabama, Louisiana, Ohio, Vermont, and the more recent States all have property qualifications as a condition for service on a State court jury.
Now that is important to be considered in connection with some of the decisions of the Supreme Court of the United States.
First, let us examine the statutes of some of the 13 Original States at the time of their formation of the Union. In Connecticut, jurors were required to be "able, judicious freehold
* * *." Statutes of Connecticut, book 1, page 426 (1808). (The word "freeholder" is generally used to designate the owner of an estate in fee in land. See, e.g. State v. Ragland, 75 N.C. 12, 13.)
In Delaware, jurors were required to be “discreet and judicious freeholders" (Laws of Delaware, 1700–1797, p. 241).
Georgia required jurors to be “free, white, male citizens above the age of 21 years and under 50 years” (Georgia Digest, 1755–1799, p. 627).
In Maryland, jurors were required to be “freemen of their respective counties, of the most wisdom and experience, having a free hold of 50 acres of land in his county, or property in the state above the value of three hundred pounds current money ..." (Maryland Laws 16921784, vol. 1, October 1777, ch. 16).
In Massachusetts, jurors were required to be freeholders, qualified electors, “good and lawful men” of their town and “of good moral character (Massachusetts Laws, 1780-1787, vol. 1, p. 184).
In New Hampshire it was required that "the selectmen of each town, and of each parish ... shall take a list of the names of all persons living within their respective limits, qualified, in the opinion of the selectmen, to serve as petit jurors; each of whom to have an estate of free hold of forty shillings per annum, or other estate to the value of fifty pounds" (New Hampshire Perpetual Laws, 1776– 1789, p. 43).
In New Jersey, jurors were required to be “a citizen of this State and resident within the country, above the age of 21, and under the age of 65 years and (have) a freehold in land, messuages or tenements in the county ." (Laws of New Jersey (1821) 1797, p. 311).
In New York jurors should "every one of them, be above the age of 21 and under the age of 60 years and shall each of them have ... in his own name or right, or interest for him or in his wife's right in the same county, a freehold in land messuages or tenements, or of rents in fee or for life, of the value of sixty pounds, free of all reprises,
debts, demands or encumbrances whatsoever ..." (Laws of New York, 1785–1788, vol. I, p. 275).
In North Carolina, jurors were only required to be “freeholders” (North Carolina Revised Laws, 1715–1796, vol. I, p. 395).
Pennsylvania jurors were required to be "sober and judicious persons of good reputation and none other” (Pennsylvania Statutes at Large, 1682-1801, vol. XI, p. 487).
Rhode Island jurors were required to be freeholders who have “a sufficient estate to him free of this State” (Rhode Island public laws, revised 1798, p. 186).
In South Carolina, jurors were drawn from lists drawn up by the general assembly. The laws provided that “the several persons whose names are mentioned and contained in the lists or schedule hereunto annexed and all persons who hereafter shall be named and appointed to serve as jurymen by the General Assembly . . , shall be deemed and taken to be qualified to serve and act as jurymen on all trials and inquests whatsoever ." (South Carolina Statutes, 1716-1752, p. 781).
In Virginia, jurors were required to be “discreet freeholders” and "citizens of the State” (Virginia Laws, 1776–1801, pages 139, 442).
Soon after the adoption of the Constitution, Alabama, Illinois, Louisiana, Ohio, Mississippi, among others, were admitted.
In Alabama, jurors were required to be over 21 years of age, under 60, and not in ill health (Alabama Digest of Laws, 1833, p. 295).
Íllinois required her jurors to be good and lawful men." ' Housekeepers were also deemed qualified (Pope's Digest 1815, vol. II, p. 71).
Louisiana required jurors to be qualified electors. Qualified electors were those persons who owned at least 50 acres of land in the State. (General Digest of the Acts of the Legislature of the State of Louisiana, 1816, pp. 192, 282).
In Ohio, jurors were required to be "judicious persons having the qualification of electors. . : ." (Ohio Laws, revision 1824, p. 95).
Qualified electors were — all white male inhabitants above the age of 21 years, having resided in the State one year next preceding the election ... who have paid or are charged with a state or county tax ... (Statutes of Ohio, vol. XXII, p. 21).
In Mississippi, the jury requirements were thatNo person under the age of 21 years, or above the age of 60, nor any person continually sick, or who may be diseased at the time of the summons . . . shall be summoned on a jury. Additionally, only “freeholders" and "householders" were drawn for such service (Statutes of the Mississippi Territory (1816) pp. 157, 182).
Of the States later admitted, I have selected at random Arizona, California, Florida, Oklahoma, Oregon, Michigan, Montana and New Mexico.
Arizona required her jurors to be citizens of the United States, electors of the county in which they are returned, but failure to pay poll taxes would not disqualify persons from serving as jurors, over 21 and under 60 years of age, in the possession of his natural faculties.
In California, a juror was required to: (1) Be a citizen of the United States, a qualified elector of the county, and a resident of the township