After a debate of two weeks*** it became evident that many leading Republicans of this House would not consent to so radical a change in the Constitution, and the bill was recommitted to the joint select committee." When the revised version of the first section of the Fourteenth Amendment was reported out, Representative Thaddeus Stevens, leader of the House Radical Republicans, observed that this section "allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all." " Bingham, too, referred to the first section as giving Congress the power to protect citizens against unconstitutional state legislation." Senator Jacob Howard, a Michigan Republican lawyer, reporting the same provision to the Senate on behalf of the Joint Committee on Reconstruction, also noted that the Equal Protection Clause was directed at abolishing "all class legislation," and that the fifth section of the amendment was designed to give Congress the power to carry out the guarantees of the first section." Senator Luke Poland, a Vermont Republican, and a former chief justice of that state's supreme court, speaking in favor of the revised and final version of the first section, likewise noted that it was designed to "uproot and destroy all *** partial State legislation" just as the previously passed civil rights bill was intended to do." Senator Timothy Howe, a Wisconsin Radical Republican and a former state supreme court justice, in supporting the amendment, also urged that it would correct unjust legislation." Senator John Henderson, a Missouri Republican, referred to the "provision securing equal protection of the laws against inimical State legislation."

51

It is evident from the foregoing that the original intention of the framers was only to permit Congress to enact laws which affected the activities of state officials. The question may be asked, how was this expected to cure the private violence which Congress was concerned about in the South? The answer lies in an analysis of the Civil Rights Bill, the substantive principles of which the first section of the Fourteenth Amendment was designed to incorporate." In introducing the bill, Senator Lyman Trumbull of Illinois, Republican Chairman of the Senate Judiciary Committee, observed that his bill would not apply in states which had equal laws. Indeed, the second section, which was the penal enforcement provision, required that to be penalized the person depriving Negroes of their rights would have to be acting under color of law.52 Senator Garrett Davis, a Kentucky Democrat, opposed the bill because state judges and officers could be punished for executing state constitutions and laws. Trumbull replied that since Negroes had been freed under the Thirteenth Amendment, they were citizens and hence entitled to the privileges and immunities given citizens by Article 4, Section 2 of the original Constitution." He therefore explained that state judges and other officials who refused Negroes the protection of the laws should be punished for not doing their duty under the constitution. But he added:

"These words 'under color of law' were inserted as words of limitation, and not for the purpose of punishing persons who would not have been subject to punishment under the act if they had been omitted. If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have anything to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against under color of State laws because he is colored, then it becomes necessary to interfere for his protection."

99 55

In the House, Representative William Lawrence, an Ohio Republican and a former state judge, made the same observation. He pointed out that there were two ways in which a state could deprive citizens of their rights, either by pass

ing prohibitory laws, or by "a failure to protect any one of them." Thus, if a state should enact laws for the protection of one group of citizens, and simply omit to pass a law for the protection of others, this would constitute a denial of equal protection granted by the laws. Lawrence further noted that the bill did not undertake to punish individual crimes against citizens respecting their life, liberty, or property, but rather constituted an enforcement of the Privileges and Immunities Clause of Article 4, Section 2 of the Constitution. Lawrence decried "States [which] should authorize such offenses [against life, liberty, or property], or deny to a class of citizens all protection against them. * * *** He approved the punishment of state officers guilty of doing this.5

The following colloquy between Representative James Wilson, an Iowa Republican lawyer and Chairman of the House Judiciary Committee, who was in charge of the Civil Rights Bill, and Representative Benjamin F. Loan, a Missouri Republican lawyer, illustrates this point clearly:

"Mr. LOAN. Mr. Speaker, I desire to ask the chairman who reported this bill. why the committee limit the provisions of the second section to those who act under color of law. Why not let them apply to the whole community where the acts are committed?

"Mr. WILSON. That grows out of the fact that there is discrimination in reference to civil rights under the local laws of the States. Therefore we provide that the persons who under the color of these local laws should do these things shall be liable to this punishment.

"Mr. LOAN. What penalty is imposed upon others than officers who inflict these wrongs on the citizen?

"Mr. WILSON. We are not making a general criminal code for the States. "Mr. LOAN. Why not abrogate those laws instead of inflicting penalties upon officers who execute writs under them?

"Mr. WILSON. A law without a sanction is of very little force.

"Mr. LOAN. Then why not put it in the bill directly?

"Mr. WILSON. That is what we are trying to do."

59

Even though Bingham opposed the Civil Rights Bill for other reasons, his views were exactly the same on this point. He never contemplated punishing private individuals for private crimes. He said:

"*** the care of the property, liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States. and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country. I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights. *** Standing upon this position, I may borrow the words *** as truly descriptive of the American system: 'centralized government, decentralized administration.' That, sir, *** is the secret of your strength and power.

"I hold, sir, that our Constitution never conferred upon the Congress of the United States the power-sacred as life is, first as it is before all other rights which pertain to man on this side of the grave-to protect it in time of peace by the terrors of the penal code within organized States; and Congress has never attempted to do it. There never was a law upon the United States statute-book to punish the murderer for taking away in time of peace the life of the noblest, and the most unoffending as well, of your citizens, within the limits of any State of the Union. The protection of the citizen in that respect was left to the respective States, and there the power is today. What you cannot do by direction you cannot do by indirection." 60

The conclusion from the foregoing material is not in doubt. The Thirty-Ninth Congress, in proposing the Fourteenth Amendment, never contemplated the punishment of private individuals not acting pursuant to state law for crimes committed against other individuals, regardless of the motive. Instead, such law enforcement activities were to be left to state officials, where they had traditionally reposed. The remedy that Congress did propose was that if state officials were derelict in their duty, imposed by the first section of the Fourteenth Amend

5 Id. at 1833.

57 Id. at 1835. 58 Id. at 1837.

He said: "And if an officer shall intentionally deprive a citizen of a right, knowing him to be entitled to it, then he is guilty of a wilful wrong which deserves punishment.'

50 Id. at 1120.

60 Id. at 1292.

ment, to protect the lives, liberty, and property of all persons equally, then under the fifth section Congress could enforce the first section by punishing such state officials for their willful dereliction. Thus, the theory was that if state officials carried out their federally-imposed duty of protecting all persons equally, crimes against southern white unionists, northern travelers in the south, and Negroes would be prevented by these state officials exercising their traditional law enforcement powers. But in no event did the framers in the Thirty-Ninth Congress contemplate that private criminals could be punished by federal authority under the fifth section of the Fourteenth Amendment. The defeat of the original Bingham draft shows that Congress wanted to foreclose even the possibility that such a power might be derived from the proposed amendment.

4. THE FIRST ENFORCEMENT ACTS

62

61

In urging the position that Congress could reach private conspiracies which did not involve public officers, in the Guest case, the Justice Department relied heavily in its brief on Section 241 of the Criminal Code, which was originally derived from Section 6 of the Enforcement Act of 1870. The Department's brief quoted extensively from the remarks of Senator John Pool of North Carolina, which, as previously noted, the Court appended to its opinion in the Price case. The Department noted that:

63

"The most compelling evidence of the intent of the framers of the Fourteenth Amendment is, of course, to be found in the reports and debates of the ThirtyNinth Congress which drafted the Amendment and proposed it to the States. But, unfortunately, those materials contain nothing really conclusive on the point at issue here."

As shown above, this premise is highly dubious, depending, of course, on what one deems to be "really conclusive." The Department's brief then proceeds to assert that the Enforcement Act of May 31, 1870, which was involved in the Gucst case, constituted a contemporaneous construction of the Fourteenth Amendment and the similarly worded Fifteenth Amendment, since many of the senators and representatives who voted for these amendments likewise voted for the statutes enforcing them. The brief accordingly concluded that these amendments were believed by such members of Congress to allow it to punish private violence not engaged in by state officials." This line of reasoning contains several flaws.

The first of these flaws is the assumption that the dominant Radical Republicans were fastidious about constitutional niceties during reconstruction so that their legislation in fact represented true contemporaneous construction of the relevant constitutional provisions. We have on record the very frank confession of Representative John F. Farnsworth, an Illinois Republican lawyer who supported these amendments, and who was an experienced representative and prominent union general, that the contrary was in fact the case. Farnsworth said: **** that I had given votes and done things during my twelve years' service in the House of Representatives which I cannot defend, I have no doubt * * *. I know we have done things during the war and during the process of reconstruction to save the Republic which could not be defended if done in peace. We were obliged to do some things *** which will scarcely bear the test of the calm light of peace and constitutional law. We passed laws, Mr. Speaker, and the country knows it, which we did not like to let go to the Supreme Court for adjudication. And I am telling no tales out of school. ***

"Sir, we have done some things under the necessity of the case, and under the war powers, and I am ready to do them again to save the nation's life, which may be a little beyond the verge of the constitutional power possessed by Congress in time of peace.'

In regard to the Enforcement Act itself, some remarks of Senator Jacob Howard of Michigan point in the same direction. Howard started out by observing that he had been dissatisfied with the Fifteenth Amendment while it was on its passage, and had offered a different version not limited to inhibiting state

61 81 U.S.C. § 241.

62 16 Stat. 140, ch. 114 (1870).

Brief for appellant in United States v. Guest, 86 Sup. Ct. 1170 (1966), at pp. 14-15. 64 Id. at 33-34.

Id. at 37-40.

68 42 (1) Globe app. 116 (1871) Bingham himself admitted engaging in unconstitutional hanky-panky in 1866. See 41 (2) Globe 1747 (1870).

or federal action.67 Indeed, he had been a carping critic of the amendment's phraseology." Howard observed that the amendment as passed inhibited only state and federal legislation, saying:

"It is a prohibition upon the two Governments, the Federal and the State Government, by which they are respectively disabled from passing any act by which this evil shall be created or encouraged. It does not, in terms, relate to the conduct of mere individuals, and a very 'strict construction' court of justice might, as I can well conceive, refuse to apply the real principles of the amendment to the case of individuals who themselves, as mere individuals, and not as authorized by Governments or Government officers, should undertake to deny or prevent a colored man the exercise of his right of suffrage; and I have some fear, I confess, that owing to the peculiar phraseology of this amendment some courts may give it that strict, and in my judgment, narrow construction." ** Howard proceeded to assert that Congress intended a broader purpose than the strict language of the amendment relating to federal or state discriminatory legislation. He said that it intended to assure Negroes the opportunity to vote. But he hesitated to say what the United States Supreme Court would construe the amendment to mean, and expressed the fear that the state courts would give it a "narrow construction" which would exclude the punishment of individuals for preventing Negroes from voting, "which was the great object we had in view in proposing this amendment. * * Howard protested against such a construction as being out of harmony with the advocates of the amendment, and because it would largely deprive Negroes of remedies "which was in the minds of its authors when it was under discussion in these Chambers." "

What was in the minds of the framers of the Fifteenth Amendment nobody knows, but what was in their speeches is a matter of record. The dominant Republicans, especially in the Senate, presented the apex of discord to the country, and the compromise conference report finally hammered out was the subject of keen disappointment.71 But in the proposals, counterproposals, objections, cross-objections, disputes and solutions, which filled a large portion of the Congressional Globe for the third session of the Fortieth Congress, scarcely a word can be found indicating that anyone was interested in private individuals preventing Negroes from voting. There were too many other priority objections to the various drafts of the amendment. There were long discussions about uprooting state laws and constitutions wholesale,72 but none about private conduct. If Congress was after the latter problem it was the best kept secret in the country, and its final product was a peculiarly poor job of legislative drafting. The only possible conclusion is that everybody overlooked the problem of private violence. This is hardly surprising. Considering the confusion and haste which surrounded the amendment's proposal, it is very believable that Congress in the rush overlooked the matter entirely. This frequently occurs when legislation is enacted under time pressure. It is possible that had the question of private violence to prevent Negro voting been brought up in 1869 when the Fifteenth Amendment was upon its passage the draft would have been broadened to give the Congress the power to forbid such violence, although it is also possible that Howard would have found himself in the minority on this issue as he did in respect to other matters. Such a possibility is fortified by the rejection of the first Bingham draft of the first section of the Fourteenth Amendment. But in any event, whatever may have been in the minds of Howard and others in Congress regarding private violence to bar voting, none of it got into their speeches or into the Fifteenth Amendment itself. If the spirit exhibited in Howard's ex post facto self-serving declaration pervaded the Enforcement Act of 1870, the statute may be safely disregarded as a contemporaneous construction of either the Fourteenth or the Fifteenth Amendment.

The remarks of Senator Pool, upon which the Justice Department's brief so heavily relied, are also instructive. Pool was one of the two Republicans to vote against the Fifteenth Amendment, 73 and was not a member of Congress in 1866 when the Fourteenth Amendment was proposed. He observed:

67 41 (2) Globe 3654-55 (1870).

68 See Avins. The Fifteenth Amendment and Literacy Tests: The Original Intent, 18 Stanford L. Rev. 808. 813-14, 817-18, 820 (1966). 6041 (2) Globe 3655 (1870).

70 Ibid.

**These Kuklux. * * * mean to render invalid and inefficient in its operation the provisions of the fifteenth amendment; but it is done in an indirect way. *** I have not the fifteenth amendment before me, but I think it provides that no State shall debar a man from the right to vote because of his race, color, or previous condition. Standing at the ballot-box and keeping colored men away by force would hardly be a violation of the laws of the Union. They have not done that; that is not the purpose; the purpose is terrorism and intimidation and thus to prevent the exercise of the right to vote." original.) 74

75

(Emphasis in

In spite of this clear recognition that the Fifteenth Amendment limited only state action, about one month later Senator Pool proposed provisions purporting to enforce that amendment which punished private individuals who interfered with the right to vote, along with a broader provision which became the sixth section of the Enforcement Act and which punished private conspiracies to intimidate citizens in the exercise of their constitutional rights." On the surface, at least, it once again appears that Congress was more concerned with securing the Negro vote for the Republican Party in the South" than in the constitutional limitations of the amendments it was purporting to enforce. In an age of notoriously low political morality one can well credit Representative Farnsworth's confession. There is thus good reason to discredit completely the Justice Department's theory of contemporaneous construction.

However, it would still be instructive to examine the debates on the Enforcement Act, taking them at face value, to see to what extent they actually did reflect the theory of the framers of the Fourteenth Amendment. On April 15, 1870, while the readmission of Georgia was under consideration, Senator Pool made a long speech about the activities of the Ku Klux Klan, which was very active in his home state of North Carolina. Pool commenced by admitting that crime was committed all over the country, and asserted that his state was freer of ordinary crimes of violence than most other areas. He added that as a practicing lawyer, he was able to state that ordinary crimes were efficiently punished. But Pool observed that political murders committed by the Ku Klux Klan were not punished because state officials were unable or unwilling to ferret out and punish the offenders. He concluded:

"If by acts of commission or omission a State will not protect its citizens, then the United States is bound to protect life and property when a case is made for its interference." "

Pool then observed that the purpose of the crimes committed by the Klan was to deter Negroes from voting or to force them to vote the Democratic ticket. He added that the local law enforcement officers do nothing to stop these political crimes, and indeed, asserted that the local sheriffs and their deputies were "winking at their proceedings." Pool added that the grand juries and petit juries were stacked with Klansmen, so that "there is no protection from the law." He declared that the large majority of the southern whites were opposed to the congressional reconstruction policy and to the Fifteenth Amendment and were determined to thwart it by violence.78 He concluded that southern colored Republicans received no protection in life or property from law enforcement agencies of the state."

Pool returned to the same point right before introducing his proposal in speeches quoted in the Justice Department's brief" and as an appendix to the Price opinion. On May 19, 1870, after adverting to his prior speech, Pool asserted that a state might not only "deny" to Negroes the right to vote by enacting positive legislation prohibiting it, but "by acts of omission it may practically deny the right." Pool added:

"The legislation of Congress must be to supply acts of omissions on the part of the States. If a State shall not enforce its laws by which private individuals shall be prevented by force from contravening the rights of the citizen under the amendment, it is in my judgment the duty of the United States Government

74 41 (2) Globe 2722 (1870).

Id. at 3612.

7 Negro votes provide the margin of victory for President Grant's reelection in 1872: see 43 (1) Record 1314 (1873) (Rep. Ransier).

7741 (2) Globe 2718 (1870).

7 Id. at 2718-19.

To Id. at 2722.

80 Brief, op. cit. supra, n. 63 at 14-15.