Appellees, six private individuals, were indicted under 18
U.S.C. § 241 for conspiring to deprive Negro citizens in the
vicinity of Athens, Georgia, of the free exercise and enjoyment of
rights secured to them by the Constitution and laws of the United
States,
viz., the right to use state facilities without
discrimination on the basis of race, the right freely to engage in
interstate travel, and the right to equal enjoyment of privately
owned places of public accommodation, now guaranteed by Title II of
the Civil Rights Act of 1964. The indictment specified various
means by which the objects of the conspiracy would be achieved,
including causing the arrest of Negroes by means of false reports
of their criminal acts. The District Court dismissed the indictment
on the ground that it did not involve rights which are attributes
of national citizenship, to which it deemed § 241 solely
applicable. The court also held the public accommodation allegation
legally inadequate for failure to allege discriminatory motivation
which the court thought essential to charge an interference with a
right secured by Title II, and because the enforcement remedies in
Title II were deemed exclusive. The United States appealed directly
to this Court under the Criminal Appeals Act.
Held:
1. This Court has no jurisdiction under the Criminal Appeals Act
to review the invalidation of that portion of the indictment
concerning interference with the right to use public
accommodations, the District Court's ruling with respect thereto
being based, at least alternatively, not on a construction of a
statute, but on what the court conceived to be a pleading defect.
Pp.
383 U. S.
749-752.
2. The allegation in the indictment of state involvement in the
conspiracy charged under § 241 was sufficient to charge a violation
of rights protected by the Fourteenth Amendment. Pp.
383 U. S.
753-757.
(a) Section 241 includes within its coverage Fourteenth
Amendment rights whether arising under the Equal Protection
Page 383 U. S. 746
Clause, as in this case, or under the Due Process Clause, as in
United States v. Price, post, p.
383 U. S. 787. P.
383 U. S.
753.
(b) As construed to protect Fourteenth Amendment rights § 241 is
not unconstitutionally vague, since, by virtue of its being a
conspiracy statute it operates only against an offender acting with
specific intent to infringe the right in question (
Screws v.
United States, 325 U. S. 91) and
the right to equal use of public facilities described in the
indictment has been made definite by decisions of this Court. Pp.
383 U. S.
753-754.
(c) The State's involvement need be neither exclusive nor direct
in order to create rights under the Equal Protection Clause. P.
383 U. S.
755-756.
(d) The allegation concerning the arrest of Negroes by means of
false reports was sufficiently broad to cover a charge of active
connivance by state agents or other official discriminatory conduct
constituting a denial of rights protected by the Equal Protection
Clause. Pp.
383 U. S.
756-757.
3. Section 241 reaches conspiracies specifically directed
against the exercise of the constitutional right to travel freely
from State to State and to use highways and other instrumentalities
for that purpose; the District Court therefore erred in dismissing
the branch of the indictment relating to that right. Pp.
383 U. S.
757-760.
246 F.
Supp. 475, reversed and remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The six defendants in this case were indicted by a United States
grand jury in the Middle District of
Page 383 U. S. 747
Georgia for criminal conspiracy in violation of 18 U.S.C. 241
(1964 ed.). That section provides in relevant part:
"If two or more persons conspire to injure, oppress, threaten,
or intimidate any citizen in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of
the United States, or because of his having so exercised the
same;"
"
* * * *"
"They shall be fined not more than $5,000 or imprisoned not more
than ten years, or both."
In five numbered paragraphs, the indictment alleged a single
conspiracy by the defendants to deprive Negro citizens of the free
exercise and enjoyment of several specified rights secured by the
Constitution and laws of the United States. [
Footnote 1] The defendants moved to dismiss
Page 383 U. S. 748
the indictment on the ground that it did not charge an offense
under the laws of the United States. The District Court sustained
the motion and dismissed the indictment as to all defendants and
all numbered paragraphs of the indictment.
246 F.
Supp. 475.
Page 383 U. S. 749
The United States appealed directly to this Court under the
Criminal Appeals Act, 18 U.S.C. § 3731. [
Footnote 2] We postponed decision of the question of
our jurisdiction to the hearing on the merits. 381 U.S. 932. It is
now apparent that this Court does not have jurisdiction to decide
one of the issues sought to be raised on this direct appeal. As to
the other issues, however, our appellate jurisdiction is clear,
and, for the reasons that follow, we reverse the judgment of the
District Court. As in
United States v. Price, post, p.
383 U. S. 787,
decided today, we deal here with issues of statutory construction,
not with issues of constitutional power.
I
The first numbered paragraph of the indictment, reflecting a
portion of the language of § 201(a) of the Civil Rights Act of
1964, 42 U.S.C. § 2000a(a) (1964 ed.), alleged that the defendants
conspired to injure, oppress, threaten, and intimidate Negro
citizens in the free exercise and enjoyment of:
"The right to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of
motion picture theaters, restaurants, and other places of public
accommodation. [
Footnote 3]
Page 383 U. S. 750
"
The District Court held that this paragraph of the indictment
failed to state an offense against rights secured by the
Constitution or laws of the United States. The court found a fatal
flaw in the failure of the paragraph to include an allegation that
the acts of the defendants were motivated by racial discrimination,
an allegation the court thought essential to charge an interference
with rights secured by Title II of the Civil Rights Act of 1964.
[
Footnote 4] The court went on
to say that, in any event, 18 U.S.C. § 241 is not an available
sanction to protect rights secured by that title because § 207(b)
of the 1964 Act, 42 U.S.C. § 2000a-6(b) (1964 ed.), specifies that
the remedies provided in Title II itself are
Page 383 U. S. 751
to be the exclusive means of enforcing the rights the title
secures. [
Footnote 5]
A direct appeal to this Court is available to the United States
under the Criminal Appeals Act, 18 U.S.C. § 3731, from
"a decision or judgment . . . dismissing any indictment . . . or
any count thereof, where such decision or judgment is based upon
the . . . construction of the statute upon which the indictment . .
. is founded."
In the present case, however, the District Court's judgment as
to the first paragraph of the indictment was based, at least
alternatively, upon its determination that this paragraph was
defective as a matter of pleading. Settled principles of review
under the Criminal Appeals Act therefore preclude our review of the
District Court's judgment on this branch of the indictment. In
United States v. Borden Co., 308 U.
S. 188, Chief Justice Hughes, speaking for a unanimous
Court, set out these principles with characteristic clarity:
"The established principles governing our review are these: (1)
Appeal does not lie from a judgment which rests on the mere
deficiencies of the indictment
Page 383 U. S. 752
as a pleading, as distinguished from a construction of the
statute which underlies the indictment. (2) Nor will an appeal lie
in a case where the District Court has considered the construction
of the statute, but has also rested its decision upon the
independent ground of a defect in pleading which is not subject to
our examination. In that case, we cannot disturb the judgment and
the question of construction becomes abstract. (3) This Court must
accept the construction given to the indictment by the District
Court as that is a matter we are not authorized to review. . .
."
308 U.S. at
308 U. S. 193.
See also United States v. Swift & Co., 318 U.
S. 442,
318 U. S. 444.
The result is not changed by the circumstance that we have
jurisdiction over this appeal as to the other paragraphs of the
indictment.
United States v. Board, supra, involved an
indictment comparable to the present one for the purposes of
jurisdiction under the Criminal Appeals Act. In
Borden,
the District Court had held all four counts of the indictment
invalid as a matter of construction of the Sherman Act, but had
also held the third count defective as a matter of pleading. The
Court accepted jurisdiction on direct appeal as to the first,
second, and fourth counts of the indictment, but it dismissed the
appeal as to the third count for want of jurisdiction. "The
Government's appeal does not open the whole case."
308 U.
S. 188,
308 U. S.
193.
It is hardly necessary to add that our ruling as to the Court's
lack of jurisdiction now to review this aspect of the case implies
no opinion whatsoever as to the correctness either of the District
Court's appraisal of this paragraph of the indictment as a matter
of pleading or of the court's view of the preclusive effect of §
207(b) of the Civil Rights Act of 1964.
Page 383 U. S. 753
II
The second numbered paragraph of the indictment alleged that the
defendants conspired to injure, oppress, threaten, and intimidate
Negro citizens of the United States in the free exercise and
enjoyment of:
"The right to the equal utilization, without discrimination upon
the basis of race, of public facilities in the vicinity of Athens,
Georgia, owned, operated or managed by or on behalf of the State of
Georgia or any subdivision thereof."
Correctly characterizing this paragraph as embracing rights
protected by the Equal Protection Clause of the Fourteenth
Amendment, the District Court held as a matter of statutory
construction that 18 U.S.C. § 241 does not encompass any Fourteenth
Amendment rights, and further held as a matter of constitutional
law that "any broader construction of § 241 . . . would render it
void for indefiniteness." 246 F. Supp. at 486. In so holding, the
District Court was in error, as our opinion in
United States v.
Price, post, p.
383 U. S. 787,
decided today, makes abundantly clear.
To be sure,
Price involves rights under the Due Process
Clause, whereas the present case involves rights under the Equal
Protection Clause. But no possible reason suggests itself for
concluding that § 241 -- if it protects Fourteenth Amendment rights
-- protects rights secured by the one Clause, but not those secured
by the other. We have made clear in
Price that, when § 241
speaks of "any right or privilege secured . . . by the Constitution
or laws of the United States," it means precisely that.
Moreover, inclusion of Fourteenth Amendment rights within the
compass of 18 U.S.C. § 241 does not render the statute
unconstitutionally vague. Since the gravamen of the offense is
conspiracy, the requirement that the offender must act with a
specific intent to interfere
Page 383 U. S. 754
with the federal rights in question is satisfied.
Screws v.
United States, 325 U. S. 91;
United States v. Williams, 341 U. S.
70,
341 U. S. 93-95
(dissenting opinion). And the rights under the Equal Protection
Clause described by this paragraph of the indictment have been so
firmly and precisely established by a consistent line of decisions
in this Court, [
Footnote 6]
that the lack of specification of these rights in the language of §
241 itself can raise no serious constitutional question on the
ground of vagueness or indefiniteness.
Unlike the indictment in
Price, however, the indictment
in the present case names no person alleged to have acted in any
way under the color of state law. The argument is therefore made
that, since there exist no Equal Protection Clause rights against
wholly private action, the judgment of the District Court on this
branch of the case must be affirmed. On its face, the argument is
unexceptionable. The Equal Protection Clause speaks to the State or
to those acting under the color of its authority. [
Footnote 7]
In this connection, we emphasize that 241 by its clear language
incorporates no more than the Equal Protection Clause itself; the
statute does not purport to give substantive, as opposed to
remedial, implementation to
Page 383 U. S. 755
any rights secured by that Clause. [
Footnote 8] Since we therefore deal here only with the
bare terms of the Equal Protection Clause itself, nothing said in
this opinion goes to the question of what kinds of other and
broader legislation Congress might constitutionally enact under § 5
of the Fourteenth Amendment to implement that Clause or any other
provision of the Amendment. [
Footnote 9]
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 any thing to the rights which
one citizen has under the Constitution against another."
United
States v. Cruikshank, 92 U. S. 542,
92 U. S.
554-555. 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. Williams, 341 U. S.
70,
341 U. S. 92
(dissenting opinion). This has been the view of the Court from the
beginning.
United States v. Cruikshank, supra; United States v.
Harris, 106 U. S. 629;
Civil Rights Cases, 109 U. S. 3;
Hodges v. United States, 203 U. S. 1;
United States v. Powell, 212 U.S. 564. It remains the
Court's view today.
See, e.g., Evans v. Newton,
382 U. S. 296;
United States v. Price, post, p.
383 U. S. 787.
This is not to say, however, that the involvement of the State
need be either exclusive or direct. In a variety of situations the
Court has found state action of a nature sufficient to create
rights under the Equal Protection Clause even though the
participation of the State was peripheral, or its action was only
one of several cooperative
Page 383 U. S. 756
forces leading to the constitutional violation.
See, e.g.,
Shelley v. Kraemer, 334 U. S. 1;
Pennsylvania v. Board of Trusts, 353 U.
S. 230;
Burton v. Wilmington Parking Authority,
365 U. S. 715;
Peterson v. City of Greenville, 373 U.
S. 244;
Lombard v. Louisiana, 373 U.
S. 267;
Griffin v. Maryland, 378 U.
S. 130;
Robinson v. Florida, 378 U.
S. 153;
Evans v. Newton, supra.
This case, however, requires no determination of the threshold
level that state action must attain in order to create rights under
the Equal Protection Clause. This is so because, contrary to the
argument of the litigants, the indictment, in fact, contains an
express allegation of state involvement sufficient at least to
require the denial of a motion to dismiss. One of the means of
accomplishing the object of the conspiracy, according to the
indictment, was "By causing the arrest of Negroes by means of false
reports that such Negroes had committed criminal acts." [
Footnote 10] In
Bell v.
Maryland, 378 U. S. 226,
three members of the Court expressed the view that a private
businessman's invocation of state police and judicial action to
carry out his own policy of racial discrimination was sufficient to
create Equal Protection Clause rights in those against whom the
racial discrimination was directed. [
Footnote 11] Three other members of the Court strongly
disagreed with that view, [
Footnote 12] and three expressed no opinion on the
question. The allegation of the extent of official involvement in
the present case is not clear. It may charge no more than
cooperative private and state action similar to that involved in
Bell, but it may go considerably further. For example, the
allegation is broad enough to cover a charge of active connivance
by agents of the State in the making of the "false reports," or
other conduct amounting
Page 383 U. S. 757
to official discrimination clearly sufficient to constitute
denial of rights protected by the Equal Protection Clause. Although
it is possible that a bill of particulars, or the proof 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.
III
The fourth numbered paragraph of the indictment alleged that the
defendants conspired to injure, oppress, threaten, and intimidate
Negro citizens of the United States in the free exercise and
enjoyment of:
"The right to travel freely to and from the State of Georgia and
to use highway facilities and other instrumentalities of interstate
commerce within the State of Georgia. [
Footnote 13]"
The District Court was in error in dismissing the indictment as
to this paragraph. The constitutional right to travel from one
State to another, and necessarily to use the highways and other
instrumentalities of interstate commerce in doing so, occupies a
position fundamental to the concept of our Federal Union. It is a
right that has been firmly established and repeatedly recognized.
In
Crandall v.
Nevada, 6 Wall. 35, invalidating
Page 383 U. S. 758
a Nevada tax on every person leaving the State by common
carrier, the Court took as its guide the statement of Chief Justice
Taney in the
Passenger
Cases, 7 How. 283,
48 U. S.
492:
"For all the great purposes for which the Federal government was
formed, we are one people, with one common country. We are all
citizens of the United States; and, as members of the same
community, must have the right to pass and repass through every
part of it without interruption, as freely as in our own
States."
See 6 Wall. at
73 U. S. 48-49.
Although the Articles of Confederation provided that "the people
of each State shall have free ingress and regress to and from any
other State," [
Footnote 14]
that right finds no explicit mention in the Constitution. The
reason, it has been suggested, is that a right so elementary was
conceived from the beginning to be a necessary concomitant of the
stronger Union the Constitution created. [
Footnote 15] In any event, freedom to travel
throughout the United States has long been recognized as a basic
right under the Constitution.
See Williams v. Fears,
179 U. S. 270,
179 U. S. 274;
Twining v. New Jersey, 211 U. S. 78,
211 U. S. 97;
Edwards v. California, 314 U. S. 160,
314 U. S. 177
(concurring opinion),
314 U. S. 181
(concurring opinion);
New York v. O'Neill, 359 U. S.
1,
359 U. S. 6-8;
359 U. S. 12-16
(dissenting opinion).
In
Edwards v. California, 314 U.
S. 160, invalidating a California law which impeded the
free interstate passage of the indigent, the Court based its
reaffirmation of the federal right of interstate travel upon the
Commerce Clause. This ground of decision was consistent with
precedents firmly establishing that the federal commerce
Page 383 U. S. 759
power surely encompasses the movement in interstate commerce of
persons as well as commodities.
Gloucester Ferry Co. v.
Pennsylvania, 114 U. S. 196,
114 U. S. 203;
Covington & Cincinnati Bridge Co. v. Kentucky,
154 U. S. 204,
154 U. S.
218-219;
Hoke v. United States, 227 U.
S. 308,
227 U. S. 320;
United States v. Hill, 248 U. S. 420,
248 U. S. 423.
It is also well settled in our decisions that the federal commerce
power authorizes Congress to legislate for the protection of
individuals from violations of civil rights that impinge on their
free movement in interstate commerce.
Mitchell v. United
States, 313 U. S. 80;
Henderson v. United States, 339 U.
S. 816;
Boynton v. Virginia, 364 U.
S. 454;
Atlanta Motel v. United States,
379 U. S. 241;
Katzenbach v. McClung, 379 U. S. 294.
Although there have been recurring differences in emphasis
within the Court as to the source of the constitutional right of
interstate travel, there is no need here to canvass those
differences further. [
Footnote
16] All have agreed that the right exists. Its explicit
recognition as one of the federal rights protected by what is now
18 U.S.C. § 241 goes back at least as far as 1904.
United
States v. Moore, 129 F. 630, 633. We reaffirm it now.
[
Footnote 17]
Page 383 U. S. 760
This does not mean, of course, that every criminal conspiracy
affecting an individual's right of free interstate passage is
within the sanction of 18 U.S.C. § 241. A specific intent to
interfere with the federal right must be proved, and at a trial the
defendants are entitled to a jury instruction phrased in those
terms.
Screws v. United States, 325 U. S.
91,
325 U. S.
106-107. Thus, for example, a conspiracy to rob an
interstate traveler would not, of itself, violate § 241. But if the
predominant purpose of the conspiracy is to impede or prevent the
exercise of the right of interstate travel, or to oppress a person
because of his exercise of that right, then, whether or not
motivated by racial discrimination, the conspiracy becomes a proper
object of the federal law under which the indictment in this case
was brought. Accordingly, it was error to grant the motion to
dismiss on this branch of the indictment.
For these reasons, the judgment of the District Court is
reversed, and the case is remanded to that court for further
proceedings consistent with this opinion.
It is so ordered.
Page 383 U. S. 761
[
Footnote 1]
The indictment, filed on October 16, 1964, was as follows:
"THE GRAND JURY CHARGES: "
"Commencing on or about January 1, 1964, and continuing to the
date of this indictment, HERBERT GUEST, JAMES SPERGEON LACKEY,
CECIL WILLIAM MYERS, DENVER WILLIS PHILLIPS, JOSEPH HOWARD SIMS,
and GEORGE HAMPTON TURNER, did, within the Middle District of
Georgia, Athens Division, conspire together, with each other, and
with other persons to the Grand Jury unknown, to injure, oppress,
threaten, and intimidate Negro citizens of the United States in the
vicinity of Athens, Georgia, in the free exercise and enjoyment by
said Negro citizens of the following rights and privileges secured
to them by the Constitution and laws of the United States: "
"1. The right to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of
motion picture theaters, restaurants, and other places of public
accommodation;"
"2. The right to the equal utilization, without discrimination
upon he basis of race, of public facilities in the vicinity of
Athens, Georgia, owned, operated or managed by or on behalf of the
State of Georgia or any subdivision thereof;"
"3. The right to the full and equal use on the same terms as
white citizens of the public streets and highways in the vicinity
of Athens, Georgia;"
"4. The right to travel freely to and from the State of Georgia
and to use highway facilities and other instrumentalities of
interstate commerce within the State of Georgia;"
"5. Other rights exercised and enjoyed by white citizens in the
vicinity of Athens, Georgia."
"It was a part of the plan and purpose of the conspiracy that
its objects be achieved by various means, including the following:
"
"1. By shooting Negroes;"
"2. By beating Negroes;"
"3. By killing Negroes;"
"4. By damaging and destroying property of Negroes;"
"5. By pursuing Negroes in automobiles and threatening them with
guns;"
"6. By making telephone calls to Negroes to threaten their
lives, property, and persons, and by making such threats in
person;"
"7. By going in disguise on the highway and on the premises of
other persons; "
"8. By causing the arrest of Negroes by means of false reports
that such Negroes had committed criminal acts; and"
"9. By burning crosses at night in public view."
"All in violation of Section 241, Title 18, United States
Code."
The only additional indication in the record concerning the
factual details of the conduct with which the defendants were
charged is the statement of the District Court that:
"It is common knowledge that two of the defendants, Sims and
Myers, have already been prosecuted in the Superior Court of
Madison County, Georgia for the murder of Lemuel A. Penn, and by a
jury found not guilty."
246 F.
Supp. 475, 487.
[
Footnote 2]
This appeal concerns only the first four numbered paragraphs of
the indictment. The Government conceded in the District Court that
the fifth paragraph added nothing to the indictment, and no
question is raised here as to the dismissal of that paragraph.
[
Footnote 3]
Section 201(a) of the Civil Rights Act of 1964, 42 U.S.C. §
2000a(a) (1964 ed.), provides:
"All persons shall be entitled to the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation, as defined in
this section, without discrimination or segregation on the ground
of race, color, religion, or national origin."
The criteria for coverage of motion picture theaters by the Act
are stated in §§ 201(b)(3) and 201(c)(3), 42 U.S.C. §§ 2000a(b)(3)
and 2000a(c)(3) (1964 ed.); the criteria for coverage of
restaurants are stated in §§ 201(b)(2) and 201(c)(2), 42 U.S.C. §§
2000a(b)(2) and 2000a(c)(2) (1964 ed.). No issue is raised here as
to the failure of the indictment to allege specifically that the
Act is applicable to the places of public accommodation described
in this paragraph of the indictment.
[
Footnote 4]
The District Court said:
"The Government contends that the rights enumerated in paragraph
1 stem from Title 2 of the Civil Rights Act of 1964, and thus
automatically come within the purview of § 241. The Government
conceded on oral argument that paragraph one would add nothing to
the indictment absent the Act. It is not clear how the rights
mentioned in paragraph one can be said to come from the Act because
§ 201(a), upon which the draftsman doubtless relied, lists the
essential element 'without discrimination or segregation on the
ground of race, color, religion, or national origin.' This element
is omitted from paragraph one of the indictment, and does not
appear in the charging part of the indictment. The Supreme Court
said in
Cruikshank, supra, 92 U.S. at page
92 U. S.
556, where deprivation of right to vote was
involved,"
""We may suspect that
race' was the cause of the hostility;
but it is not so averred. This is material to a description of the
substance of the offense and cannot be supplied by implication.
Everything essential must be charged positively, not inferentially.
The defect here is not in form, but in substance.""
246 F.
Supp. 475, 484.
[
Footnote 5]
Section 207(b) of the Civil Rights Act of 1964, 42 U.S.C. §
2000a-6(b) (1964 ed.), states:
"The remedies provided in this title shall be the exclusive
means of enforcing the rights based on this title, but nothing in
this title shall preclude any individual or any State or local
agency from asserting any right based on any other Federal or State
law not inconsistent with this title, including any statute or
ordinance requiring nondiscrimination in public establishments or
accommodations, or from pursuing any remedy, civil or criminal,
which may be available for the vindication or enforcement of such
right."
Relying on this provision and its legislative history, the
District Court said:
"It seems crystal clear that the Congress in enacting the Civil
Rights Act of 1964 did not intend to subject anyone to any possible
criminal penalties except those specifically provided for in the
Act itself."
246 F. Supp. at 485.
[
Footnote 6]
See, e.g., Brown v. Board of Education, 347 U.
S. 483 (schools);
New Orleans City Park Improvement
Assn. v. Detiege, 358 U. S. 54;
Wright v. Georgia, 373 U. S. 284;
Watson v. Memphis, 373 U. S. 526;
City of New Orleans v. Barthe, 376 U.
S. 189 (parks and playgrounds);
Holmes v. City of
Atlanta, 350 U.S. 879 (golf course);
Mayor and City
Council of Baltimore City v. Dawson, 350 U.S. 877 (beach);
Muir v. Louisville Park Theatrical Assn., 347 U.S. 971
(auditorium);
Johnson v. Virginia, 373 U. S.
61 (courthouse);
Burton v. Wilmington Parking
Authority, 365 U. S. 715
(parking garage);
Turner v. City of Memphis, 369 U.
S. 350 (airport).
[
Footnote 7]
"No State shall . . . deny to any person within its jurisdiction
the equal protection of the laws."
[
Footnote 8]
See p.
383 U. S. 747,
supra.
[
Footnote 9]
Thus, contrary to the suggestion in MR. JUSTICE BRENNAN's
separate opinion, nothing said in this opinion has the slightest
bearing on the validity or construction of Title III or Title IV of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000b, 2000c (1964
ed.).
[
Footnote 10]
See note 1,
supra.
[
Footnote 11]
378 U. S. 226, at
378 U. S. 242
(separate opinion of MR. JUSTICE DOUGLAS);
id. at
378 U. S. 286
(separate opinion Of Mr. Justice Goldberg).
[
Footnote 12]
Id. at
378 U. S. 318
(dissenting opinion of MR. JUSTICE BLACK).
[
Footnote 13]
The third numbered paragraph alleged that the defendants
conspired to injure, oppress, threaten, and intimidate Negro
citizens of the United States in the free exercise and enjoyment
of:
"The right to the full and equal use on the same terms as white
citizens of the public streets and highways in the vicinity of
Athens, Georgia."
Insofar as the third paragraph refers to the use of local public
facilities, it is covered by the discussion of the second numbered
paragraph of the indictment in Part II of this opinion. Insofar as
the third paragraph refers to the use of streets or highways in
interstate commerce, it is covered by the present discussion of the
fourth numbered paragraph of the indictment.
[
Footnote 14]
Art. IV, Articles of Confederation.
[
Footnote 15]
See Chafee, Three Human Rights in the Constitution of
1787, at 15 (1956).
[
Footnote 16]
The District Court relied heavily on
United States v.
Wheeler, 254 U. S. 281, in
dismissing this branch of the indictment. That case involved an
alleged conspiracy to compel residents of Arizona to move out of
that State. The right of interstate travel was, therefore, not
directly involved. Whatever continuing validity
Wheeler
may have as restricted to its own facts, the dicta in the
Wheeler opinion relied on by the District Court in the
present case have been discredited in subsequent decisions.
Cf.
Edwards v. California, 314 U. S. 160,
314 U. S. 177,
314 U. S. 180
(DOUGLAS, J., concurring);
United States v. Williams,
341 U. S. 70,
341 U. S.
80.
[
Footnote 17]
As emphasized in MR. JUSTICE HARLAN's separate opinion, § 241
protects only against interference with rights secured by other
federal laws or by the Constitution itself. The right to interstate
travel is a right that the Constitution itself guarantees, as the
cases cited in the text make clear. Although these cases, in fact,
involved governmental interference with the right of free
interstate travel, their reasoning fully supports the conclusion
that the constitutional right of interstate travel is a right
secured against interference from any source whatever, whether
governmental or private. In this connection, it is important to
reiterate that the right to travel freely from State to State finds
constitutional protection that is quite independent of the
Fourteenth Amendment.
We are not concerned here with the extent to which interstate
travel may be regulated or controlled by the exercise of a State's
police power acting within the confines of the Fourteenth
Amendment.
See Edwards v. California, 314 U.
S. 160,
314 U. S. 184
(concurring opinion);
New York v. O'Neill, 359 U. S.
1,
359 U. S. 6-8. Nor
is there any issue here as to the permissible extent of federal
interference with the right within the confines of the Due Process
Clause of the Fifth Amendment.
Cf. Zemel v. Rusk,
381 U. S. 1;
Aptheker v. Secretary of State, 378 U.
S. 500;
Kent v. Dulles, 357 U.
S. 116.
MR. JUSTICE CLARK, with whom MR. JUSTICE BLACK and MR. JUSTICE
FORTAS join, concurring.
I join the opinion of the Court in this case but believe it
worthwhile to comment on its
383 U. S.
oppress, threaten and intimidate Negro citizens of the United
States in the free exercise and enjoyment of:
"The right to the equal utilization, without discrimination upon
the basis of race, of public facilities in the vicinity of Athens,
Georgia, owned, operated or managed by or on behalf of the State of
Georgia or any subdivision thereof."
The appellees contend that the indictment is invalid since 18
U.S.C. § 241, under which it was returned, protects only against
interference with the exercise of the right to equal utilization of
state facilities, which is not a right "secured" by the Fourteenth
Amendment in the absence of state action. With respect to this
contention the Court upholds the indictment on the ground that it
alleges the conspiracy was accomplished, in part, "[b]y causing the
arrest of Negroes by means of false reports that such Negroes had
committed criminal acts." The Court reasons that this allegation of
the indictment might well cover active connivance by agents of the
State in the making of these false reports or in carrying on other
conduct amounting to official discrimination. By so construing the
indictment, it finds the language sufficient to cover a denial of
rights protected by the Equal Protection Clause. The Court thus
removes from the case any necessity for a "determination of the
threshold level that state action must attain in order to create
rights under the Equal Protection Clause." A study of the language
in the indictment clearly shows
Page 383 U. S. 762
that the Court's construction is not a capricious one, and I
therefore agree with that construction, as well as the conclusion
that follows.
The Court carves out of its opinion the question of the power of
Congress, under § 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 that the Court's disposition constitutes an
acceptance of appellees' aforesaid contention as to § 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.
383 U. S. 755,
it is, I believe, both appropriate and necessary under the
circumstances here to say that there now can be no doubt that the
specific language of § 5 empowers the Congress to enact laws
punishing all conspiracies -- with or without state action -- that
interfere with Fourteenth Amendment rights.
MR. JUSTICE HARLAN, concurring in part and dissenting in
part.
I join Parts I and II [
Footnote
2/1] of the Court's opinion, but I cannot subscribe to
383 U. S. To
the extent that it is there held that 18 U.S.C. § 241 (1964 ed.)
reaches conspiracies, embracing only the action of
Page 383 U. S. 763
private persons, to obstruct or otherwise interfere with the
right of citizens freely to engage in interstate travel, I am
constrained to dissent. On the other hand, I agree that § 241 does
embrace state interference with such interstate travel, and I
therefore consider that this aspect of the indictment is
sustainable on the reasoning of Part II of the Court's opinion.
This right to travel must be found in the Constitution itself.
This is so because § 241 covers only conspiracies to interfere with
any citizen in the "free exercise or enjoyment" of a right or
privilege "secured to him by the Constitution or laws of the United
States," and no "right to travel" can be found in § 241 or in any
other law of the United States. My disagreement with this phase of
the Court's opinion lies in this: while past cases do indeed
establish that there is a constitutional "right to travel" between
States free from unreasonable governmental interference, today's
decision is the first to hold that such movement is also protected
against private interference, and, depending on the constitutional
source of the right, I think it either unwise or impermissible so
to read the Constitution.
Preliminarily, nothing in the Constitution expressly secures the
right to travel. In contrast, the Articles of Confederation
provided in Art. IV:
"The better to secure and perpetuate mutual friendship and
intercourse among the people of the different States in this Union,
the free inhabitants of each of these States . . . shall be
entitled to all privileges and immunities of free citizens in the
several States, and the people of each State shall have free
ingress and regress to and from any other State, and shall enjoy
therein all the privileges of trade and commerce, subject to the
same duties, impositions and restrictions as the inhabitants
thereof respectively. . .
Page 383 U. S. 764
"
This right to "free ingress and regress" was eliminated from the
draft of the Constitution without discussion even though the main
objective of the Convention was to create a stronger union. It has
been assumed that the clause was dropped because it was so
obviously an essential part of our federal structure that it was
necessarily subsumed under more general clauses of the
Constitution.
See United States v. Wheeler, 254 U.
S. 281,
254 U. S. 294.
I propose to examine the several asserted constitutional bases for
the right to travel, and the scope of its protection in relation to
each source.
I
Because of the close proximity of the right of ingress and
regress to the Privileges and Immunities Clause of the Articles of
Confederation, it has long been declared that the right is a
privilege and immunity of national citizenship under the
Constitution. In the influential opinion of Mr. Justice Washington
on circuit,
Corfield v. Coryell, 4 Wash.C.C. 371 (1825),
the court addressed itself to the question -- "what are the
privileges and immunities of citizens in the several states?"
Id. at 380.
Corfield was concerned with a New
Jersey statute restricting to state citizens the right to rake for
oysters, a statute which the court upheld. In analyzing the
Privileges and Immunities Clause of the Constitution, Art. IV, § 2,
the court stated that it confined "these expressions to those
privileges and immunities which are, in their nature, fundamental,"
and listed among them
"The right of a citizen of one state to pass through, or to
reside in any other state, for purposes of trade, agriculture,
professional pursuits, or otherwise. . . ."
Id. at 380-381.
The dictum in Corfield was given general approval in the first
opinion of this Court to deal directly with the right of free
movement,
Crandall v.
Nevada, 6 Wall. 35,
Page 383 U. S. 765
which struck down a Nevada statute taxing persons leaving the
State. It is first noteworthy that, in his concurring opinion, Mr.
Justice Clifford asserted that he would hold the statute void
exclusively on commerce grounds, for he was clear "that the State
legislature cannot impose any such burden upon commerce among the
several States." 6 Wall. at
73 U. S. 49. The
majority opinion of Mr. Justice Miller, however, eschewed reliance
on the Commerce Clause and the Import-Export Clause and looked
rather to the nature of the federal union:
"The people of these United States constitute one nation. . . .
This government has necessarily a capital established by law. . . .
That government has a right to call to this point any or all of its
citizens to aid in its service. . . . The government, also, has its
offices of secondary importance in all other parts of the country.
On the sea-coasts and on the rivers, it has its ports of entry. In
the interior, it has its land offices, its revenue offices, and its
sub-treasuries. In all these, it demands the services of its
citizens, and is entitled to bring them to those points from all
quarters of the nation, and no power can exist in a State to
obstruct this right that would not enable it to defeat the purposes
for which the government was established."
6 Wall. at
73 U. S. 43-44.
Accompanying this need of the Federal Government, the Court found a
correlative right of the citizen to move unimpeded throughout the
land:
"He has the right to come to the seat of government to assert
any claim he may have upon that government, or to transact any
business he may have with it. To seek its protection, to share its
offices, to engage in administering its functions. He has a right
to free access to its sea-ports, through which all the operations
of foreign trade and commerce are
Page 383 U. S. 766
conducted, to the sub-treasuries, the land offices, the revenue
offices, and the courts of justice in the several States, and this
right is in its nature independent of the will of any State over
whose soil he must pass in the exercise of it."
6 Wall. at
73 U. S. 44. The
focus of that opinion, very clearly, was thus on impediments by the
States on free movement by citizens. This is emphasized
subsequently when Mr. Justice Miller asserts that this approach is
"neither novel nor unsupported by authority," because it is,
fundamentally, a question of the exercise of a State's taxing power
to obstruct the functions of the Federal Government:
"[T]he right of the States in this mode to impede or embarrass
the constitutional operations of that government, or the rights
which its citizens hold under it, has been uniformly denied."
6 Wall. at
73 U. S.
44-45.
Later cases, alluding to privileges and immunities, have in
dicta included the right to free movement.
See Paul v.
Virginia, 8 Wall. 168,
75 U. S. 180;
Williams v. Fears, 179 U. S. 270,
179 U. S. 274;
Twining v. New Jersey, 211 U. S. 78.
Although the right to travel thus has respectable precedent to
support its status as a privilege and immunity of national
citizenship, it is important to note that those cases all dealt
with the right of travel simply as affected by oppressive state
action. Only one prior case in this Court,
United States v.
Wheeler, 254 U. S. 281, was
argued precisely in terms of a right to free movement, as against
interference by private individuals. There, the Government alleged
a conspiracy under the predecessor of § 241 against the
perpetrators of the notorious Bisbee Deportations. [
Footnote 2/2] The case was argued straightforwardly
in terms of whether the right to free ingress and
Page 383 U. S. 767
egress, admitted by both parties to be a right of national
citizenship, was constitutionally guaranteed against private
conspiracies. The Brief for the Defendants in Error, whose counsel
was Charles Evans Hughes, later Chief Justice of the United States,
gives as one of its main points:
"So far as there is a right pertaining to Federal citizenship to
have free ingress or egress with respect to the several States, the
right is essentially one of protection against the action of the
States themselves and of those acting under their authority."
Brief, at p. i. The Court, with one dissent, accepted this
interpretation of the right of unrestricted interstate movement,
observing that
Crandall v. Nevada, supra, was inapplicable
because,
inter alia, it dealt with state action. 254 U.S.
at
254 U. S. 299.
More recent cases discussing or applying the right to interstate
travel have always been in the context of oppressive state action.
See, e.g., Edwards v. California, 314 U.
S. 160, and other cases discussed
infra.
[
Footnote 2/3]
It is accordingly apparent that the right to unimpeded
interstate travel, regarded as a privilege and immunity of national
citizenship, was historically seen as a method of breaking down
state provincialism, and facilitating the creation of a true
federal union. In the one case in which a private conspiracy to
obstruct such movement was heretofore presented to this Court, the
predecessor of the very statute we apply today was held not to
encompass such a right.
II
A second possible constitutional basis for the right to move
among the States without interference is the Commerce Clause. When
Mr. Justice Washington articulated
Page 383 U. S. 768
the right in
Corfield, it was in the context of a state
statute impeding economic activity by outsiders, and he cast his
statement in economic terms. 4 Wash. C. C., at 380-381. The two
concurring Justices in
Crandall v. Nevada, supra, rested
solely on the commerce argument, indicating again the close
connection between freedom of commerce and travel as principles of
our federal union. In
Edwards v. California, 314 U.
S. 160, the Court held squarely that the right to
unimpeded movement of persons is guaranteed against oppressive
state legislation by the Commerce Clause, and declared
unconstitutional a California statute restricting the entry of
indigents into that State.
Application of the Commerce Clause to this area has the
advantage of supplying a longer tradition of case law and more
refined principles of adjudication. States do have rights of
taxation and quarantine,
see Edwards v. California, 314
U.S. at
314 U. S. 184
(concurring opinion), which must be weighed against the general
right of free movement, and Commerce Clause adjudication has
traditionally been the means of reconciling these interests. Yet
this approach to the right to travel, like that found in the
privileges and immunities cases, is concerned with the
interrelation of state and federal power, not -- with an exception
to be dealt with in a moment -- with private interference.
The case of
In re Debs, 158 U.
S. 564, may be thought to raise some doubts as to this
proposition. There, the United States sought to enjoin Debs and
members of his union from continuing to obstruct -- by means of a
strike -- interstate commerce and the passage of the mails. The
Court held that Congress and the Executive could certainly act to
keep the channels of interstate commerce open, and that a court of
equity had no less power to enjoin what amounted to a public
nuisance. It might
Page 383 U. S. 769
be argued that to the extent Debs permits the Federal Government
to obtain an injunction against the private conspiracy alleged in
the present indictment, [
Footnote
2/4] the criminal statute should be applicable as well on the
ground that the governmental interest in both cases is the same,
namely to vindicate the underlying policy of the Commerce Clause.
However, § 241 is not directed toward the vindication of
governmental interests; it requires a private right under federal
law. No such right can be found in
Debs, which stands
simply for the proposition that the Commerce Clause gives the
Federal Government standing to sue on a basis similar to that of
private individuals under nuisance law. The substantive rights of
private persons to enjoin such impediments, of course, devolve from
state, not federal, law; any seemingly inconsistent discussion in
Debs would appear substantially vitiated by
Erie R.
Co. v. Tompkins, 304 U. S. 64.
I cannot find in any of this past case law any solid support for
a conclusion that the Commerce Clause embraces a right to be free
from private interference. And the Court's opinion here makes no
such suggestion.
III
One other possible source for the right to travel should be
mentioned. Professor Chafee, in his thoughtful study, "Freedom of
Movement," [
Footnote 2/5] finds
both the privileges and immunities approach and the Commerce Clause
approach unsatisfactory. After a thorough review of the history
Page 383 U. S. 770
and cases dealing with the question, he concludes that this
"valuable human right,"
id. at 209, is best seen in due
process terms:
"Already, in several decisions, the Court has used the Due
Process Clause to safeguard the right of the members of any race to
reside where they please inside a state, regardless of ordinances
and injunctions. Why is not this clause equally available to assure
the right to live in any state one desires? And unreasonable
restraints by the national government on mobility can be upset by
the Due Process Clause in the Fifth Amendment. . . . Thus, the
'liberty' of all human beings which cannot be taken away without
due process of law includes liberty of speech, press, assembly,
religion, and also liberty of movement."
Id. at 192-193.
This due process approach to the right to unimpeded movement has
been endorsed by this Court. In
Kent v. Dulles,
357 U. S. 116, the
Court asserted that "The right to travel is a part of the "liberty"
of which the citizen cannot be deprived without due process of law
under the Fifth Amendment,"
id. at
357 U. S. 125,
citing
Crandall v. Nevada, supra, and
Edwards v.
California, supra. It is true that the holding in that case
turned essentially on statutory grounds. However, in
Aptheker
v. Secretary of State, 378 U. S. 500, the
Court, applying this constitutional doctrine, struck down a federal
statute forbidding members of Communist organizations to obtain
passports. Both the majority and dissenting opinions affirmed the
principle that the right to travel is an aspect of the liberty
guaranteed by the Due Process Clause.
Viewing the right to travel in due process terms, of course,
would clearly make it inapplicable to the present case, for due
process speaks only to governmental action
Page 383 U. S. 771
IV
This survey of the various bases for rounding the "right to
travel" is conclusive only to the extent of showing that there has
never been an acknowledged constitutional right to be free from
private interference, and that the right in question has
traditionally been seen and applied, whatever the constitutional
underpinning asserted, only against governmental impediments. The
right involved being as nebulous as it is, however, it is necessary
to consider it in terms of policy as well as precedent.
As a general proposition, it seems to me very dubious that the
Constitution was intended to create certain rights of private
individuals as against other private individuals. The
Constitutional Convention was called to establish a nation, not to
reform the common law. Even the Bill of Rights, designed to protect
personal liberties, was directed at rights against governmental
authority, not other individuals. It is true that there is a very
narrow range of rights against individuals which have been read
into the Constitution. In
Ex parte Yarbrough, 110 U.
S. 651, the Court held that implicit in the Constitution
is the right of citizens to be free of private interference in
federal elections.
United States v. Classic, 313 U.
S. 299, extended this coverage to primaries.
Logan
v. United States, 144 U. S. 263,
applied the predecessor of § 241 to a conspiracy to injure someone
in the custody of a United States marshal; the case has been read
as dealing with a privilege and immunity of citizenship, but it
would seem to have depended as well on extrapolations from
statutory provisions providing for supervision of prisoners. The
Court in
In re Quarles, 158 U. S. 532,
extending
Logan, supra, declared that there was a right of
federal citizenship to inform federal officials of violations of
federal law.
See also United
Page 383 U. S. 772
States v. Cruikshank, 92 U. S. 542,
92 U. S. 552,
which announced in dicta a federal right to assemble to petition
the Congress for a redress of grievances.
Whatever the validity of these cases on their own terms, they
are hardly persuasive authorities for adding to the collection of
privileges and immunities the right to be free of private
impediments to travel. The cases just discussed are narrow, and are
essentially concerned with the vindication of important
relationships with the Federal Government voting in federal
elections, involvement in federal law enforcement, communicating
with the Federal Government. The present case stands on a
considerably different footing.
It is arguable that the same considerations which led the Court
on numerous occasions to find a right of free movement against
oppressive state action now justify a similar result with respect
to private impediments.
Crandall v. Nevada, supra, spoke
of the need to travel to the capital, to serve and consult with the
offices of government. A basic reason for the formation of this
Nation was to facilitate commercial intercourse; intellectual,
cultural, scientific, social, and political interests are likewise
served by free movement. Surely these interests can be impeded by
private vigilantes as well as by state action. Although this
argument is not without force, I do not think it is particularly
persuasive. There is a difference in power between States and
private groups so great that analogies between the two tend to be
misleading. If the State obstructs free intercourse of goods,
people, or ideas, the bonds of the union are threatened; if a
private group effectively stops such communication, there is, at
most, a temporary breakdown of law and order, to be remedied by the
exercise of state authority or by appropriate federal
legislation.
To decline to find a constitutional right of the nature asserted
here does not render the Federal Government
Page 383 U. S. 773
helpless. As to interstate commerce by railroads, federal law
already provides remedies for "undue or unreasonable prejudice," 24
Stat. 380, as amended,49 U.S.C. § 3(1) (1964 ed.), which has been
held to apply to racial discrimination.
Henderson v. United
States, 339 U. S. 816. A
similar statute applies to motor carriers, 49 Stat. 558, as
amended, 49 U.S.C. § 316(d) (1964 ed.), and to air carriers, 72
Stat. 760, 49 U.S.C. § 1374(b) (1964 ed.).
See Boynton v.
Virginia, 364 U. S. 454;
Fitzgerald v. Pan American World Airways, 229 F.2d 499.
The Civil Rights Act of 1964, 78 Stat. 243, deals with other types
of obstructions to interstate commerce. Indeed, under the Court's
present holding, it is arguable that any conspiracy to discriminate
in public accommodations having the effect of impeding interstate
commerce could be reached under § 241, unaided by Title II of the
Civil Rights Act of 1964. Because Congress has wide authority to
legislate in this area, it seems unnecessary -- if prudential
grounds are of any relevance,
see Baker v. Carr,
369 U. S. 186,
369 U.S. 258-259 (CLARK,
J., concurring) -- to strain to find a dubious constitutional
right.
V
If I have succeeded in showing anything in this constitutional
exercise, it is that, until today, there was no federal right to be
free from private interference with interstate transit, and very
little reason for creating one. Although the Court has ostensibly
only "discovered" this private right in the Constitution and then
applied § 241 mechanically to punish those who conspire to threaten
it, it should be recognized that what the Court has in effect done
is to use this all-encompassing criminal statute to fashion federal
common law crimes, forbidden to the federal judiciary since the
1812 decision in
United States v.
Hudson, 7 Cranch 32. My Brother DOUGLAS, dissenting
in
United States v. Classic, supra,
Page 383 U. S. 774
noted well the dangers of the indiscriminate application of the
predecessor of § 241:
"It is not enough for us to find in the vague penumbra of a
statute some offense about which Congress could have legislated,
and then to particularize it as a crime because it is highly
offensive."
313 U.S. at
313 U. S.
331-332.
I do not gainsay that the immunities and commerce provisions of
the Constitution leave the way open for the finding of this
"private" constitutional right, since they do not speak solely in
terms of governmental action. Nevertheless, I think it wrong to
sustain a criminal indictment on such an uncertain ground. To do so
subjects § 241 to serious challenge on the score of vagueness, and
serves in effect to place this Court in the position of making
criminal law under the name of constitutional interpretation. It is
difficult to subdue misgivings about the potentialities of this
decision.
I would sustain this aspect of the indictment only on the
premise that it sufficiently alleges state interference with
interstate travel, and on no other ground.
[
Footnote 2/1]
The action of three of the Justices who join the Court's opinion
in nonetheless cursorily pronouncing themselves on the far-reaching
constitutional questions deliberately not reached in Part II seems
to me, to say the very least, extraordinary.
[
Footnote 2/2]
For a discussion of the deportations,
see The
President's Mediation Comm'n, Report on the Bisbee Deportations
(November 6, 1917).
[
Footnote 2/3]
The Court's reliance on
United States v. Moore, 129 F.
630, is misplaced. That case held only that it was not a privilege
or immunity to organize labor unions. The reference to "the right
to pass from one state to any other" was purely incidental
dictum.
[
Footnote 2/4]
It is not even clear that an equity court would enjoin a
conspiracy of the kind alleged here, for traditionally equity will
not enjoin a crime.
See Developments in the Law --
Injunctions, 78 Harv.L.Rev. 994, 1013-1018 (1965).
[
Footnote 2/5]
In Three Human Rights in the Constitution of 1787, at 162
(1956).
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, concurring in part and dissenting in part.
I join Part I of the Court's opinion. I reach the same result as
the Court on that branch of the indictment discussed in Part III of
its opinion, but for other reasons.
See 383
U.S. 745fn3/3|>footnote 3,
infra. And I agree with
so much of
383 U. S. S.C.
§ 241 (1964 ed.) to encompass conspiracies to injure, oppress,
threaten or intimidate citizens in the free exercise or enjoyment
of Fourteenth Amendment rights and holds that, as so construed, §
241 is not void for indefiniteness. I do not agree, however, with
the remainder of Part II which holds, as I read the opinion, that a
conspiracy to interfere with the exercise of the right to equal
utilization of
Page 383 U. S. 775
state facilities is not, within the meaning of § 241, a
conspiracy to interfere with the exercise of a "right . . . secured
. . . by the Constitution" unless discriminatory conduct by state
officers is involved in the alleged conspiracy.
I
The second numbered paragraph of the indictment charges that the
defendants conspired to injure, oppress, threaten, and intimidate
Negro citizens in the free exercise and enjoyment of
"[t]he right to the equal utilization, without discrimination
upon the basis of race, of public facilities . . . owned, operated
or managed by or on behalf of the State of Georgia or any
subdivision thereof."
Appellees contend that, as a matter of statutory construction, §
241 does not reach such a conspiracy. They argue that a private
conspiracy to interfere with the exercise of the right to equal
utilization of the state facilities described in that paragraph is
not, within the meaning of § 241, a conspiracy to interfere with
the exercise of a right "secured" by the Fourteenth Amendment
because "there exist no Equal Protection Clause rights against
wholly private action."
The Court deals with this contention by seizing upon an
allegation in the indictment concerning one of the means employed
by the defendants to achieve the object of the conspiracy. The
indictment alleges that the object of the conspiracy was to be
achieved, in part, "[b]y causing the arrest of Negroes by means of
false reports that such Negroes had committed criminal acts. . . ."
The Court reads this allegation as
"broad enough to cover a charge of active connivance by agents
of the State in the making of the 'false reports,' or other conduct
amounting to official discrimination clearly sufficient to
constitute denial of rights protected by the Equal Protection
Clause,"
and the Court holds that this allegation, so construed, is
sufficient to "prevent dismissal of this
Page 383 U. S. 776
branch of the indictment." [
Footnote
3/1] I understand this to mean that, no matter how compelling
the proof that private conspirators murdered, assaulted, or
intimidated Negroes in order to prevent their use of state
facilities, the prosecution under the second numbered paragraph
must fail in the absence of proof of active connivance of law
enforcement officers with the private conspirators in causing the
false arrests.
Hence, while the order dismissing the second numbered paragraph
of the indictment is reversed, severe limitations on the
prosecution of that branch of the indictment are implicitly
imposed. These limitations could only stem from an acceptance of
appellees' contention that, because there exist no Equal Protection
Clause rights against wholly private action, a conspiracy of
private persons to interfere with the right to equal utilization of
state facilities described in the second numbered paragraph is not
a conspiracy to interfere with a "right . . . secured . . . by the
Constitution" within the meaning of § 241. In other words, in the
Court's
Page 383 U. S. 777
view, the only right referred to in the second numbered
paragraph that is, for purposes of § 241, "secured . . . by the
Constitution" is a right to be free -- when seeking access to state
facilities -- from discriminatory conduct by state officers or by
persons acting in concert with state officers. [
Footnote 3/2]
I cannot agree with that construction of § 241. I am of the
opinion that a conspiracy to interfere with the right to equal
utilization of state facilities described in the second numbered
paragraph of the indictment is a conspiracy to interfere with a
"right . . . secured . . . by the Constitution" within the meaning
of § 241 -- without regard to whether state officers participated
in the alleged conspiracy. I believe that § 241 reaches such a
private conspiracy not because the Fourteenth Amendment, of its own
force, prohibits such conspiracy, but because § 241, as an exercise
of congressional power under § 5 of that Amendment, prohibits
all conspiracies to interfere with the exercise of a
"right . . . secured . . . by the Constitution" and because the
right to equal utilization of state facilities is a "right . . .
secured . . . by the Constitution" within the meaning of that
phrase as used in § 241. [
Footnote
3/3]
My difference with the Court stems from its construction of the
term "secured" as used in § 241 in the phrase a "right . . .
secured . . . by the Constitution or laws
Page 383 U. S. 778
of the United States." The Court tacitly construes the term
"secured" so as to restrict the coverage of § 241 to those rights
that are "fully protected" by the Constitution or another federal
law. Unless private interferences with the exercise of the right in
question are prohibited by the Constitution itself or another
federal law, the right cannot, in the Court's view, be deemed
"secured . . . by the Constitution or laws of the United States" so
as to make § 241 applicable to a private conspiracy to interfere
with the exercise of that right. The Court then premises that
neither the Fourteenth Amendment nor any other federal law
[
Footnote 3/4] prohibits private
interferences with the exercise of the right to equal utilization
of state facilities.
In my view, however, a right can be deemed "secured . . . by the
Constitution or laws of the United States," within the meaning of §
241, even though only governmental interferences with the exercise
of the right are prohibited by the Constitution itself (or another
federal
Page 383 U. S. 779
law). The term "secured" means "created by, arising under or
dependent upon,"
Logan v. United States, 144 U.
S. 263,
144 U. S. 293,
rather than "fully protected." A right is "secured . . . by the
Constitution" within the meaning of § 241 if it emanates from the
Constitution, if it finds its source in the Constitution. Section
241 must thus be viewed, in this context, as an exercise of
congressional power to amplify prohibitions of the Constitution
addressed, as is invariably the case, to government officers;
contrary to the view of the Court, I think we are dealing here with
a statute that seeks to implement the Constitution, not with the
"bare terms" of the Constitution. Section 241 is not confined to
protecting rights against private conspiracies that the
Constitution or another federal law also protects against private
interferences. No such duplicative function was envisioned in its
enactment.
See Appendix in
United States v. Price,
post, p.
383 U. S. 807.
Nor has this Court construed 241 in such a restrictive manner in
other contexts. Many of the rights that have been held to be
encompassed within § 241 are not additionally the subject of
protection of specific federal legislation or of any provision of
the Constitution addressed to private individuals. For example, the
prohibitions and remedies of § 241 have been declared to apply,
without regard to whether the alleged violator was a government
officer, to interferences with the right to vote in a federal
election,
Ex parte Yarbrough, 110 U.
S. 651, or primary,
United States v. Classic,
313 U. S. 299; the
right to discuss public affairs or petition for redress of
grievances,
United States v. Cruikshank, 92 U. S.
542,
92 U. S. 552,
cf. Hague v. CIO, 307 U. S. 496,
307 U. S.
512-513 (opinion of Roberts, J.);
Collins v.
Hardyman, 341 U. S. 651,
341 U. S. 663
(dissenting opinion); the right to be protected against violence
while in the lawful custody of a federal officer,
Logan v.
United States, 144 U. S. 263, and
the right to inform of violations of
Page 383 U. S. 780
federal law,
In re Quarles and Butler, 158 U.
S. 532. The full import of our decision in
United
States v. Price, post, p.
383 U. S. 787, at
pp.
383 U. S.
796-807, regarding § 241 is to treat the rights
purportedly arising from the Fourteenth Amendment in parity with
those rights just enumerated, arising from other constitutional
provisions. The reach of § 241 should not vary with the particular
constitutional provision that is the source of the right. For
purposes of applying § 241 to a private conspiracy, the standard
used to determine whether, for example, the right to discuss public
affairs or the right to vote in a federal election is a "right . .
. secured . . . by the Constitution" is the very same standard to
be used to determine whether the right to equal utilization of
state facilities is a "right . . . secured . . . by the
Constitution."
For me, the right to use state facilities without discrimination
on the basis of race is, within the meaning of § 241, a right
created by, arising under and dependent upon the Fourteenth
Amendment, and hence is a right "secured" by that Amendment. It
finds its source in that Amendment. As recognized in
Strauder
v. West Virginia, 100 U. S. 303,
100 U. S.
310,
"The Fourteenth Amendment makes no attempt to enumerate the
rights it designed to protect. It speaks in general terms, and
those are as comprehensive as possible. Its language is
prohibitory; but every prohibition implies the existence of rights.
. . ."
The Fourteenth Amendment commands the State to provide the
members of all races with equal access to the public facilities it
owns or manages, and the right of a citizen to use those facilities
without discrimination on the basis of race is a basic corollary of
this command.
Cf. Brewer v. Hoxie School District No. 46,
238 F.2d 91 (C.A. 8th Cir.1956). Whatever may be the status of the
right to equal utilization of
privately owned facilities, see
generally Bell v. Maryland, 378 U. S. 226, it
must be emphasized that we
Page 383 U. S. 781
are here concerned with the right to equal utilization of
public facilities owned or operated by or on behalf of the
State. To deny the existence of this right or its
constitutional stature is to deny the history of the last decade,
or to ignore the role of federal power, predicated on the
Fourteenth Amendment, in obtaining nondiscriminatory access to such
facilities. It is to do violence to the common understanding, an
understanding that found expression in Titles III and IV of the
Civil Rights Act of 1964, 78 Stat. 246, 42 U.S.C. §§ 2000b, 2000c
(1964 ed.), dealing with state facilities. Those provisions reflect
the view that the Fourteenth Amendment creates the right to equal
utilization of state facilities. Congress did not preface those
titles with a provision comparable to that, in Title II [
Footnote 3/5] explicitly creating the right
to equal utilization of certain privately owned facilities.
Congress rightly assumed that a specific legislative declaration of
the right was unnecessary, that the right arose from the Fourteenth
Amendment itself.
In reversing the District Court's dismissal of the second
numbered paragraph, I would therefore hold that proof at the trial
of the conspiracy charged to the defendants in that paragraph will
establish a violation of § 241 without regard to whether there is
also proof that state law enforcement officers actively connived in
causing the arrests of Negroes by means of false reports.
II
My view as to the scope of § 241 requires that I reach the
question of constitutional power -- whether § 241 or legislation
indubitably designed to punish entirely private
Page 383 U. S. 782
conspiracies to interfere with the exercise of Fourteenth
Amendment rights constitutes a permissible exercise of the power
granted to Congress by § 5 of the Fourteenth Amendment "to enforce,
by appropriate legislation, the provisions of" the Amendment.
A majority of the members of the Court [
Footnote 3/6] expresses the view today that § 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. Although the Fourteenth Amendment
itself, according to established doctrine, "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,
§ 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.
It made that determination in enacting § 241,
see the
Appendix in
United States v. Price, post, p.
383 U. S. 807,
and, therefore § 241 is constitutional legislation as applied to
reach the private conspiracy alleged in the second numbered
paragraph of the indictment.
I acknowledge that some of the decisions of this Court, most
notably an aspect of the
Civil Rights Cases, 109 U. S.
3,
109 U. S. 11,
have declared that Congress' power under
Page 383 U. S. 783
§ 5 is confined to the adoption of
"appropriate legislation for correcting the effects of . . .
prohibited State laws and State acts, and thus to render them
effectually null, void, and innocuous."
I do not accept -- and a majority of the Court today rejects --
this interpretation of § 5. It reduces the legislative power to
enforce the provisions of the Amendment to that of the judiciary;
[
Footnote 3/7] and it attributes a
far too limited objective to the Amendment's sponsors. [
Footnote 3/8] Moreover, the language of § 5
of the Fourteenth Amendment and § 2 of the Fifteenth Amendment are
virtually the same, and we recently held in
South Carolina v.
Katzenbach, ante, p.
383 U. S. 301, at
383 U. S. 326,
that
"[t]he basic test to be applied in a case involving § 2 of the
Fifteenth Amendment is the same as in all cases concerning the
express powers of Congress with relation to the reserved powers of
the States."
The classic formulation of that test by Chief Justice Marshall
in
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 421,
was there adopted:
"Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are
plainly adapted to that end,
Page 383 U. S. 784
which are not prohibited, but consist with the letter and spirit
of the constitution, are constitutional."
It seems to me that this is also the standard that defines the
scope of congressional authority under § 5 of the Fourteenth
Amendment. Indeed,
South Carolina v. Katzenbach
approvingly refers to
Ex parte Virginia, 100 U.
S. 339,
100 U. S.
345-346, a case involving the exercise of the
congressional power under § 5 of the Fourteenth Amendment, as
adopting the
McCulloch v. Maryland formulation for "each
of the Civil War Amendments."
Viewed in its proper perspective, § 5 of the Fourteenth
Amendment appears 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.
No one would deny that Congress could enact legislation directing
state officials to provide Negroes with equal access to state
schools, parks and other facilities owned or operated by the State.
Nor could it be denied that Congress has the power to punish state
officers who, in excess of their authority and in violation of
state law, conspire to threaten, harass and murder Negroes for
attempting to use these facilities. [
Footnote 3/9] And I can find no principle of federalism
nor word of the Constitution that denies Congress 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 -- not state officers themselves and not acting
in concert with state officers -- who engage in the same brutal
conduct for the same misguided purpose. [
Footnote 3/10]
Page 383 U. S. 785
III
Section 241 is certainly not model legislation for punishing
private conspiracies to interfere with the exercise of the right of
equal utilization of state facilities. It deals in only general
language "with Federal rights and with all Federal rights" and
protects them "in the lump,"
United States v. Mosley,
238 U. S. 383,
238 U. S. 387;
it protects in most general terms "any right or privilege secured .
. . by the Constitution or laws of the United States." Congress has
left it to the courts to mark the bounds of those words, to
determine on a case-by-case basis whether the right purportedly
threatened is a federal right. That determination may occur after
the conduct charged has taken place or it may not have been
anticipated in prior decisions; "a penumbra of rights may be
involved, which none can know until decision has been made and
infraction may occur before it is had." [
Footnote 3/11] Reliance on such wording plainly brings
§ 241 close to the danger line of being void for vagueness.
But, as the Court holds, a stringent
scienter
requirement saves § 241 from condemnation as a criminal statute
failing to provide adequate notice of the proscribed conduct.
[
Footnote 3/12] The gravamen of
the offense is conspiracy, and therefore, like a statute making
certain conduct criminal
Page 383 U. S. 786
only if it is done "willfully," § 241 requires proof of a
specific intent for conviction. We have construed § 241 to require
proof that the persons charged conspired to act in defiance, or in
reckless disregard, of an announced rulemaking the federal right
specific and definite.
United States v. Williams,
341 U. S. 70,
341 U. S. 93-95
(opinion of DOUGLAS, J.);
Screws v. United States,
325 U. S. 91,
325 U. S.
101-107 (opinion of DOUGLAS, J.) (involving the
predecessor to 18 U.S.C. § 242). Since this case reaches us on the
pleadings, there is no occasion to decide now whether the
Government will be able on trial to sustain the burden of proving
the requisite specific intent
vis-a-vis the right to
travel freely from State to State or the right to equal utilization
of state facilities.
Compare James v. United States,
366 U. S. 213,
366 U.S. 221-222 (opinion
of WARREN, C.J.). In any event, we may well agree that the
necessity to discharge that burden can imperil the effectiveness of
§ 241 where, as is often the case, the pertinent constitutional
right must be implied from a grant of congressional power or a
prohibition upon the exercise of governmental power. But since the
limitation on the statute's effectiveness derives from Congress'
failure to define -- with any measure of specificity -- the rights
encompassed, the remedy is for Congress to write a law without this
defect. To paraphrase my Brother DOUGLAS' observation in
Screws
v. United States, 325 U.S. at
325 U. S. 105,
addressed to a companion statute with the same shortcoming, if
Congress desires to give the statute more definite scope, it may
find ways of doing so.
[
Footnote 3/1]
As I read the indictment, the allegation regarding the false
arrests relates to all the other paragraphs, and not merely, as the
Court suggests, to the second numbered paragraph of the indictment.
See n 1 in the Court's
opinion. Hence, assuming that, as maintained by the Court, the
allegation could be construed to encompass discriminatory conduct
by state law enforcement officers, it would be a sufficient basis
for preventing the dismissal of each of the other paragraphs of the
indictment. The right to be free from discriminatory conduct by law
enforcement officers while using privately owned places of public
accommodation (paragraph one) or while traveling from State to
State (paragraphs three and four), or while doing anything else, is
unquestionably secured by the Equal Protection Clause. It would
therefore be unnecessary to decide whether the right to travel from
State to State is itself a right secured by the Constitution or
whether paragraph one is defective either because of the absence of
an allegation of a racial discriminatory motive or because of the
exclusive remedy provision of the Civil Rights Act of 1964, §
207(b), 78 Stat. 246, 42 U.S.C. § 2000a-6(b) (1964 ed.).
[
Footnote 3/2]
I see no basis for a reading more consistent with my own view in
the isolated statement in the Court's opinion that
"the rights under the Equal Protection Clause described by this
paragraph [two] of the indictment have been . . . firmly and
precisely established by a consistent line of decisions in this
Court. . . ."
[
Footnote 3/3]
Similarly, I believe that § 241 reaches a private conspiracy to
interfere with the right to travel from State to State. I therefore
need not reach the question whether the Constitution, of its own
force, prohibits private interferences with that right; for I
construe § 241 to prohibit such interferences, and, as so
construed, I am of the opinion that § 241 is a valid exercise of
congressional power.
[
Footnote 3/4]
This premise is questionable. Title III of the Civil Rights Act
of 1964, 78 Stat. 246, 42 U.S.C. § 2000b (1964 ed.), authorizes the
Attorney General, on complaint from an individual that he is "being
denied equal utilization of any public facility which is owned,
operated, or managed by or on behalf of any State or subdivision,"
to commence a civil action "for such relief as may be appropriate"
and against such parties as are "necessary to the grant of
effective relief." Arguably this would authorize relief against
private parties not acting in concert with state officers. (This
title of the Act does not have an exclusive remedy similar to §
207(b) of Title II, 42 U.S.C. § 2000a-6(b).)
The Court affirmatively disclaims any intention to deal with
Title III of the Civil Rights Act of 1964 in connection with the
second numbered paragraph of the indictment. But, as the District
Judge observed in his opinion, the Government maintained that the
right described in that paragraph was "secured" by the Fourteenth
Amendment and, "additionally," by Title III of the Civil Rights Act
of 1964. 246 F. Supp. at 484. That position was not effectively
abandoned in this Court.
[
Footnote 3/5]
"All persons shall be entitled to the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation, as defined in
this section, without discrimination or segregation on the ground
of race, color, religion, or national origin."
42 U.S.C. § 2000a(a) (1964 ed.).
[
Footnote 3/6]
The majority consists of the Justices joining my Brother CLARK's
opinion and the Justices joining this opinion. The opinion of MR.
JUSTICE STEWART construes § 241 as applied to the second numbered
paragraph to require proof of active participation by state
officers in the alleged conspiracy, and that opinion does not
purport to deal with this question.
[
Footnote 3/7]
Congress, not the judiciary, was viewed as the more likely
agency to implement fully the guarantees of equality, and thus it
could be presumed the primary purpose of the Amendment was to
augment the power of Congress, not the judiciary.
See
James, The Framing of the Fourteenth Amendment 184 (1956); Harris,
The Quest for Equality 53-54 (1960); Frantz, Congressional Power to
Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J.
1353, 1356 (1964).
[
Footnote 3/8]
As the first Mr. Justice Harlan said in dissent in the
Civil
Rights Cases, 109 U.S. at
109 U. S. 54:
"It was perfectly well known that the great danger to the equal
enjoyment by citizens of their rights, as citizens, was to be
apprehended not altogether from unfriendly State legislation, but
from the hostile action of corporations and individuals in the
States. And it is to be presumed that it was intended, by that
section [§ 5], to clothe Congress with power and authority to meet
that danger."
See United States v. Price, post, p.
383 U. S. 787, at
383 U. S.
803-806, and Appendix.
[
Footnote 3/9]
United States v. Price, post, p.
383 U. S. 787.
See Screws v. United States, 325 U. S.
91;
Williams v. United States, 341 U. S.
97;
Monroe v. Pape, 365 U.
S. 167.
[
Footnote 3/10]
Cf. Atlanta Motel v. United States, 379 U. S.
21,
379 U. S. 258,
applying the settled principle expressed in
United States v.
Darby, 312 U. S. 100,
312 U. S. 118,
that the power of Congress over interstate commerce
"extends to those activities intrastate which so affect
interstate commerce or the exercise of the power of Congress over
it as to make regulation of them appropriate means to the
attainment of a legitimate end. . . ."
[
Footnote 3/11]
Mr. Justice Rutledge, in
Screws v. United States, 325
U.S. at
325 U. S.
130.
[
Footnote 3/12]
Ante, pp.
383 U. S.
753-754.
See generally Boyce Motor Lines, Inc. v.
United States, 342 U. S. 337,
342 U. S. 342;
American Communications Assn. v. Douds, 339 U.
S. 382,
339 U. S.
412-413;
United States v. Ragen, 314 U.
S. 513,
314 U. S. 524;
Gorin v. United States, 312 U. S. 19,
312 U. S. 27-28;
Hyrade Provision Co. v. Sherman, 266 U.
S. 497,
266 U. S.
501-503;
Omaechevarria v. Idaho, 246 U.
S. 343,
246 U. S.
348.