United States v. Price

Nos. 59 and 60

Argued November 9, 1965

Decided March 28, 1966

383 U.S. 787

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Syllabus



Appellees are three Mississippi law enforcement officials and 15 private

individuals who are alleged to have conspired to deprive three

individuals of their rights under the Fourteenth Amendment.  The alleged

conspiracy involved releasing the victims from jail at night;

intercepting, assaulting and killing them, and disposing of their

bodies.  Its purpose was to "punish" the victims summarily.  Two

indictments were returned.  One charged all appellees with a conspiracy

under 18 U.S.C.  371 to violate 18 U.S.C.  242, which makes it a

misdemeanor willfully and under color of law to subject any person to

the deprivation of any rights secured or protected by the Constitution. 

The indictment also charged all appellees with substantive violations of

 242.  The District Court sustained the conspiracy count against a

motion to dismiss, and sustained the substantive counts as to the three

official defendants.  It dismissed the substantive counts as to the 15

private defendants on the ground that, although the indictment alleged

that they had acted "under color" of law, it did not allege that they

were acting as officers of the State.  This dismissal is here on direct

appeal as No. 60.  The other indictment charged all appellees with a

conspiracy in violation of 18 U.S.C.  241, making it a felony to

conspire to interfere with a citizen in the free exercise or enjoyment

of any right secured or protected by the Constitution or laws of the

United States.  The District Court dismissed this indictment as to all

appellees on the ground that  241 does not include rights protected by

the Fourteenth Amendment.  This dismissal is here on direct appeal as

No. 59.



Held:



1. The District Court erred in dismissing the indictment in No. 60

insofar as it charged the private defendants with substantive violations

of  242.



(a) "To act `under color' of law does not require that the accused be an

officer of the State.  It is enough that he is a willful participant in

joint activity with the State or its agents."   [383 U.S. 788]



(b) The dismissal of the indictment in No. 60 as to the private persons

resulted from the District Court's erroneous construction of the "under

color" of law requirement of  242 as making the statute inapplicable to

nonofficials, not upon a construction of the indictment as a pleading;

hence the dismissal is reviewable on direct appeal.



2. Section 241 includes within its protection rights secured or

protected by the Fourteenth Amendment, and the District Court

accordingly erred in dismissing the indictment in No. 59.



(a) The District Court incorrectly assumed that United States v.

Williams, 341 U.S. 70, authoritatively determined the inapplicability of

 241 to deprivations of Fourteenth Amendment rights.  The Justices who

reached that issue in Williams divided equally on the question.  That

case "thus left the proper construction of  241, as regards its

applicability to protect Fourteenth Amendment rights, an open question."



(b) "There is no doubt that the indictment in No. 59 sets forth a

conspiracy within the ambit of the Fourteenth Amendment.  Like the

indictment in No. 60 . . . , it alleges that the defendants acted `under

color of law,' and that the conspiracy included action by the State

through its law enforcement officers to punish the alleged victims

without due process of law in violation of the Fourteenth Amendment's

direct admonition to the States."



(c) The wording of  241 suggests no limitation of its coverage to

exclude Fourteenth Amendment rights.  "The language of  241 is plain and

unlimited. . . .  [I]ts language embraces all of the rights and

privileges secured to citizens by all of the Constitution and all of the

laws of the United States."



(d) The legislative history of  241 supports the view that it was

intended to encompass Fourteenth Amendment rights within its protection.



Reversed and remanded. [383 U.S. 789] FORTAS, J., lead opinion



MR. JUSTICE FORTAS delivered the opinion of the Court.



These are direct appeals from the dismissal in part of two indictments

returned by the United States Grand Jury for the Southern District of

Mississippi.  The indictments allege assaults by the accused persons

upon the rights of the asserted victims to due process of law under the

Fourteenth Amendment.  The indictment in No. 59 charges 18 persons with

violations of 18 U.S.C.  241 (1964 ed.).  In No. 60, the same 18 persons

are charged with offenses based upon 18 U.S.C.  242 (1964 ed.).  These

are among the so-called civil rights statutes which have come to us from

Reconstruction days, the period in our history which also produced the

Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.



The sole question presented in these appeals is whether the specified

statutes make criminal the conduct for which the individuals were

indicted.  It is an issue of construction, not of constitutional power. 

We have no doubt of the power of Congress to enforce by appropriate

criminal sanction every right guaranteed by the Due Process Clause of

the Fourteenth Amendment. United States v. Williams, 341 U.S. 70, 72.

[383 U.S. 790]



The events upon which the charges are based, as alleged in the

indictments, are as follows:  On June 21, 1964, Cecil Ray Price, the

Deputy Sheriff of Neshoba County, Mississippi, detained Michael Henry

Schwerner, James Earl Chaney and Andrew Goodman in the Neshoba County

jail located in Philadelphia, Mississippi.  He released them in the dark

of that night.  He then proceeded by automobile on Highway 19 to

intercept his erstwhile wards.  He removed the three men from their

automobile, placed them in an official automobile of the Neshoba County

Sheriff's office, and transported them to a place on an unpaved road.



These acts, it is alleged, were part of a plan and conspiracy whereby

the three men were intercepted by the 18 defendants, including Deputy

Sheriff Price, Sheriff Rainey and Patrolman Willis of the Philadelphia,

Mississippi, Police Department.  The purpose and intent of the release

from custody and the interception, according to the charge, were to

"punish" the three men.  The defendants, it is alleged, "did willfully

assault, shoot and kill" each of the three.  And, the charge continues,

the bodies of the three victims were transported by one of the

defendants from the rendezvous on the unpaved road to the vicinity of

the construction site of an earthen dam approximately five miles

southwest of Philadelphia, Mississippi. [383 U.S. 791]



These are federal, and not state, indictments.  They do not charge as

crimes the alleged assaults or murders.  The indictments are framed to

fit the stated federal statutes, and the question before us is whether

the attempt of the draftsman for the Grand Jury in Mississippi has been

successful:  whether the indictments charge offenses against the various

defendants which may be prosecuted under the designated federal

statutes.



We shall deal first with the indictment in No. 60, based on  242 of the

Criminal Code, and then with the indictment in No. 59, under  241.  We

do this for ease of exposition and because  242 was enacted by the

Congress about four years prior to  241.  Section 242 was enacted in

1866;  241 in 1870. I. No. 60



Section 242 defines a misdemeanor, punishable by fine of not more than

$1,000 or imprisonment for not more than one year, or both.  So far as

here significant, it provides punishment for



Whoever, under color of any law, statute, ordinance, regulation, or

custom, willfully subjects any inhabitant of any State . . . to the

deprivation of any rights, privileges, or immunities secured or

protected by the Constitution or laws of the United States. . . .



The indictment in No. 60 contains four counts, each of which names as

defendants the three officials and 15 nonofficial persons.  The First

Count charges, on the basis of allegations substantially as set forth

above, that all of the defendants conspired "to willfully subject"

Schwerner, Chaney and Goodman to the deprivation [383 U.S. 792] of their

right, privilege and immunity secured and protected by the Fourteenth

Amendment to the Constitution of the United States not to be summarily

punished without due process of law by persons acting under color of the

laws of the State of Mississippi. This is said to constitute a

conspiracy to violate  242, and therefore an offense under 18 U.S.C. 

371 (1964 ed.).  The latter section, the general conspiracy statute,

makes it a crime to conspire to commit any offense against the United

States.  The penalty for violation is the same as for direct violation

of  242 -- that is, it is a misdemeanor.



On a motion to dismiss, the District Court sustained this First Count as

to all defendants.  As to the sheriff, deputy sheriff and patrolman, the

court recognized that each was clearly alleged to have been acting

"under color of law," as required by  242.  As to the private persons,

the District Court held that "[I]t is immaterial to the conspiracy that

these private individuals were not acting under color of law," because

the count charges that they were conspiring with persons who were so

acting.  See United States v. Rabinowich, 238 U.S. 78, 87.



The court necessarily was satisfied that the indictment, in alleging the

arrest, detention, release, interception and killing of Schwerner,

Chaney and Goodman, adequately stated as the purpose of the conspiracy,

a violation of  242, and that this section could be violated by

"willfully subject[ing the victims] . . . to the deprivation of their

right, privilege and immunity" under the Due Process Clause of the

Fourteenth Amendment. [383 U.S. 793]



No appeal was taken by the defendants from the decision of the trial

court with respect to the First Count, and it is not before us for

adjudication.



The Second, Third and Fourth Counts of the indictment in No. 60 charge

all of the defendants not with conspiracy, but with substantive

violations of  242.  Each of these counts charges that the defendants,

acting "under color of the laws of the State of Mississippi," "did

willfully assault, shoot and kill" Schwerner, Chaney and Goodman,

respectively, "for the purpose and with the intent" of punishing each of

the three, and that the defendants "did thereby willfully deprive" each

"of rights, privileges and immunities secured and protected by the

Constitution and the laws of the United States" -- namely, due process

of law.



The District Court held these counts of the indictment valid as to the

sheriff, deputy sheriff and patrolman.  But it dismissed them as against

the nonofficial defendants because the counts do not charge that the

latter were "officers, in fact, or de facto in anything allegedly done

by them `under color of law.'"



We note that, by sustaining these counts against the three officers, the

court again necessarily concluded that an offense under  242 is properly

stated by allegations of willful deprivation, under color of law, of

life and liberty without due process of law.  We agree.  No other result

would be permissible under the decisions of this Court.  Screws v.

United States, 325 U.S. 91; Williams II. [383 U.S. 794]



But we cannot agree that the Second, Third or Fourth Counts may be

dismissed as against the nonofficial defendants.  Section 242 applies

only were a person indicted has acted "under color" of law.  Private

persons, jointly engaged with state officials in the prohibited action,

are acting "under color" of law for purposes of the statute.  To act

"under color" of law does not require that the accused be an officer of

the State.  It is enough that he is a willful participant in joint

activity with the State or its agents. [383 U.S. 795]



In the present case, according to the indictment, the brutal joint

adventure was made possible by state detention and calculated release of

the prisoners by an officer of the State.  This action, clearly

attributable to the State, was part of the monstrous design described by

the indictment.  State officers participated in every phase of the

alleged venture:  the release from jail, the interception, assault, and

murder.  It was a joint activity, from start to finish.  Those who took

advantage of participation by state officers in accomplishment of the

foul purpose alleged must suffer the consequences of that participation.

 In effect, if the allegations are true, they were participants in

official lawlessness, acting in willful concert with state officers and

hence under color of law.



Appellees urge that the decision of the District Court was based upon a

construction of the indictment to the effect that it did not charge the

private individuals with acting "under color" of law.  Consequently,

they urge us to affirm in No. 60.  In any event, they submit, since the

trial court's decision was based on the inadequacy of the indictment,

and not on construction of the statute, we have no jurisdiction to

review it on direct appeal.  United States v. Swift & Co., 318 U.S. 442.

 We do not agree.  Each count of the indictment specifically alleges

that all of the defendants were acting "under color of the laws of the

State of Mississippi."  The fault lies not in the indictment, but in the

District Court's view that the statute requires that each offender be an

official or that [383 U.S. 796] he act in an official capacity.  We have

jurisdiction to consider this statutory question on direct appeal and,

as we have shown, the trial court's determination of it is in error. 

Since each of the private individuals is indictable as a principal

acting under color of law, we need not consider whether he might be held

to answer as an "aider or abettor" under 18 U.S.C.  2 (1964 ed.),

despite omission to include such a charge in the indictment.



Accordingly, we reverse the dismissal of the Second, Third and Fourth

Counts of the indictment in No. 60, and remand for trial. II. No. 59



No. 59 charges each of the 18 defendants with a felony -- a violation of

 241.  This indictment is in one count.  It charges that the defendants

"conspired together . . . to injure, oppress, threaten and intimidate"

Schwerner, Chaney and Goodman in the free exercise and enjoyment of the

right and privilege secured to them by the Fourteenth Amendment to the

Constitution of the United States not to be deprived of life or liberty

without due process of law by persons acting under color of the laws of

Mississippi. The indictment alleges that it was the purpose of the

conspiracy that Deputy Sheriff Price would release Schwerner, Chaney and

Goodman from custody in the Neshoba County jail at such time that Price

and the other 17 defendants "could and would intercept" them "and

threaten, assault, shoot and kill them."  The penalty under  241 is a

fine of not more than $5,000, or imprisonment for not more than 10

years, or both.



Section 241 is a conspiracy statute.  It reads as follows:



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 [383 U.S.

797] United States, or because of his having so exercised the same; or



If two or more persons go in disguise on the highway, or on the premises

of another, with intent to prevent or hinder his free exercise or

enjoyment of any right or privilege so secured --



They shall be fined not more than $5,000 or imprisoned not more than ten

years, or both.



The District Court dismissed the indictment as to all defendants.  In

effect, although  241 includes rights or privileges secured by the

Constitution or laws of the United States without qualification or

limitation, the court held that it does not include rights protected by

the Fourteenth Amendment.



It will be recalled that, in No. 60, the District Court held that  242

included the denial of Fourteenth Amendment rights -- the same right to

due process involved in the indictment under  241.  Both include rights

or privileges secured by the Constitution or laws of the United States. 

Neither is qualified or limited.  Each includes, presumably, all of the

Constitution and laws of the United States.  To the reader of the two

sections, versed only in the English language, it may seem bewildering

that the two sections could be so differently read.



But the District Court purported to read the statutes with the gloss of

Williams I.  In that case, the only case in which this Court has

squarely confronted the point at issue, the Court did, in fact, sustain

dismissal of an indictment under  241.  But it did not, as the District

Court incorrectly assumed, hold that  241 is inapplicable to Fourteenth

Amendment rights.  The Court divided equally on the issue.  Four

Justices, in an opinion by Mr. Justice Frankfurter, were of the view

that  241 "only covers conduct which interferes with rights arising from

the substantive powers of the Federal Government" -- rights "which

Congress can beyond doubt [383 U.S. 798] constitutionally secure against

interference by private individuals."  341 U.S. at 73, 77.  Four other

Justices, in an opinion by MR. JUSTICE DOUGLAS, found no support for Mr.

Justice Frankfurter's view in the language of the section, its

legislative history, or its judicial interpretation up to that time. 

They read the statute as plainly covering conspiracies to injure others

in the exercise of Fourteenth Amendment rights.  They could see no

obstacle to using it to punish deprivations of such rights.  Dismissal

of the indictment was affirmed because MR. JUSTICE BLACK voted with

those who joined Mr. Justice Frankfurter.  He did so, however, for an

entirely different reason -- that the prosecution was barred by res

judicata -- and he expressed no view on the issue whether " 241, as

applied, is too vague and uncertain in scope to be consistent with the

Fifth Amendment."  Williams I thus left the proper construction of  241,

as regards its applicability to protect Fourteenth Amendment rights, an

open question.



In view of the detailed opinions in Williams I, it would be

supererogation to track the arguments in all of their intricacy.  On the

basis of an extensive reexamination of the question, we conclude that

the District Court erred; that  241 must be read as it is written -- to

reach conspiracies to injure . . . 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 . . . ; that this language includes rights

or privileges protected by the Fourteenth Amendment; that whatever the

ultimate coverage of the section may be, it extends to conspiracies

otherwise within the scope of the section, participated in by officials

alone or in collaboration with private persons, and that the indictment

in No. 59 properly charges such a conspiracy in violation of  241.  We

shall confine ourselves to a review of the major considerations which

induce our conclusion. [383 U.S. 799]



1. There is no doubt that the indictment in No. 59 sets forth a

conspiracy within the ambit of the Fourteenth Amendment.  Like the

indictment in No. 60, supra, it alleges that the defendants acted "under

color of law," and that the conspiracy included action by the State,

through its law enforcement officers, to punish the alleged victims

without due process of law in violation of the Fourteenth Amendment's

direct admonition to the States.



The indictment specifically alleges that the sheriff, deputy sheriff and

a patrolman participated in the conspiracy; that it was a part of the

"plan and purpose of the conspiracy" that Deputy Sheriff Price, while

having [the three victims] . . . in his custody in the Neshoba County

Jail . . . , would release them from custody at such time that he [and

others of the defendants] . . . could and would intercept [the three

victims] . . . and threaten, assault, shoot and kill them.



This is an allegation of state action which, beyond dispute, brings the

conspiracy within the ambit of the Fourteenth Amendment.  It is an

allegation of official, state participation in murder, accomplished by

and through its officers with the participation of others.  It is an

allegation that the State, without the semblance of due process of law

as required of it by the Fourteenth Amendment, used its sovereign power

and office to release the victims from jail so that they were not

charged and tried, as required by law, but instead could be intercepted

and killed.  If the Fourteenth Amendment forbids denial of counsel, it

clearly denounces denial of any trial at all.



As we have consistently held "The Fourteenth Amendment protects the

individual against state action, not against wrongs done by

individuals."  Williams I, 341 U.S. at 92 (opinion of DOUGLAS, J.).  In

the present case, the participation by law enforcement officers, as [383

U.S. 800] alleged in the indictment, is clearly state action, as we have

discussed, and it is therefore within the scope of the Fourteenth

Amendment.



2. The argument, however, of Mr. Justice Frankfurter's opinion in

Williams I, upon which the District Court rests its decision cuts

beneath this.  It does not deny that the accused conduct is within the

scope of the Fourteenth Amendment, but it contends that, in enacting 

241, the Congress intended to include only the rights and privileges

conferred on the citizen by reason of the "substantive" powers of the

Federal Government -- that is, by reason of federal power operating

directly upon the citizen, and not merely by means of prohibitions of

state action.  As the Court of Appeals for the Fifth Circuit in Williams

I, relied upon in the opinion below, put it, the Congress had in mind

the federal rights and privileges which appertain to citizens as such,

and not the general rights extended to all persons by the . . .

Fourteenth Amendment. 179 F.2d 644, 648.  We do not agree.



The language of  241 is plain and unlimited.  As we have discussed, its

language embraces all of the rights and privileges secured to citizens

by all of the Constitution and all of the laws of the United States. 

There is no indication in the language that the sweep of the section is

confined to rights that are conferred by or "flow from" the Federal

Government, as distinguished from those secured or confirmed or

guaranteed by the Constitution.  We agree with the observation of Mr.

Justice Holmes in United States v. Mosley, 238 U.S. 383, 387-388, that

The source of this section in the doings of the Ku Klux and the like is

obvious, and acts of violence obviously were in the mind of Congress. 

Naturally Congress put forth all its powers. . . .  [T]his section [383

U.S. 801] dealt with Federal rights and with all Federal rights, and

protected them in the lump. . . .  [It should not be construed so] as to

deprive citizens of the United States of the general protection which,

on its face,  19 [now  241] most reasonably affords.



We believe, with Mr. Justice Holmes, that the history of the events from

which  241 emerged illuminates the purpose and means of the statute with

an unmistakable light.  We think that history leaves no doubt that, if

we are to give  241 the scope that its origins dictate, we must accord

it a sweep as broad as its language.  We are not at liberty to seek

ingenious analytical instrument for excluding from its general language

the Due Process Clause of the Fourteenth Amendment -- particularly since

the violent denial of legal process was one of the reasons motivating

enactment of the section.



Section 241 was enacted as part of what came to be known as the

Enforcement Act of 1870, 16 Stat. 140.{10}  The Act was passed on May

31, 1870, only a few months [383 U.S. 802] after ratification of the

Fifteenth Amendment.  In addition to the new  241, it included a

reenactment of a provision of the Civil Rights Act of 1866 which is now 

242.  The intended breadth of  241 is emphasized by contrast with the

narrowness of  242 as it then was.{11}  Section 242 forbade the

deprivation, "under color of any law," of "any right secured or

protected by this act."  The rights protected by the Act were narrow and

specific: to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and proceedings

for the security of person and property as is enjoyed by white citizens

[and to] be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and none other. Act of May 31,

1870,  16, 16 Stat. 144, reenacting, with minor changes, Act of April 9,

1866,  1, 14 Stat. 27.  Between 1866 and 1870, there was much agitated

criticism in the Congress and in the Nation because of the continued

denial of rights to Negroes, sometimes accompanied by violent assaults. 

In response to the demands for more stringent legislation, Congress

enacted the Enforcement Act of 1870.  Congress had before it and

reenacted  242, which was explicitly limited as we have described.  At

the same time, it included  241 in the Act using broad language to cover

not just the rights enumerated in  242, but all rights and privileges

under the Constitution and laws of the United States. [383 U.S. 803]



It was not until the statutory revision of 1874 that the specific

enumeration of protected rights was eliminated from  242.  The section

was then broadened to include as wide a range of rights as  241 already

did:  "any rights, privileges, or immunities secured or protected by the

Constitution and laws of the United States."  The substantial change

thus effected was made with the customary stout assertions of the

codifiers that they had merely clarified and reorganized, without

changing substance.{12}  Section 241 was left essentially unchanged, and

neither in the 1874 revision nor in any subsequent reenactment has there

been the slightest indication of a congressional intent to narrow or

limit the original broad scope of  241.  It is clear, therefore, that 

241, from original enactment through subsequent codifications, was

intended to deal, as Mr. Justice Holmes put it, with conspiracies to

interfere with "Federal rights and with all Federal rights."  We find no

basis whatsoever for a Judgment of Solomon which would give to the

statute less than its words command.{13}



The purpose and scope of the 1866 and 1870 enactments must be viewed

against the events and passions of the time.{14}  The Civil War had

ended in April, 1865.  Relations between Negroes and whites were

increasingly turbulent.{15}  Congress had taken control of the entire

[383 U.S. 804] governmental process in former Confederate States.  It

had declared the governments in 10 "unreconstructed" States to be

illegal, and had set up federal military administrations in their place.

 Congress refused to seat representatives from these States until they

had adopted constitutions guaranteeing Negro suffrage, and had ratified

the Fourteenth Amendment.  Constitutional conventions were called in

1868.  Six of the 10 States fulfilled Congress' requirements in 1868,

the other four by 1870.



For a few years, "radical" Republicans dominated the governments of the

Southern States, and Negroes played a substantial political role.  But

countermeasures were swift and violent.  The Ku Klux Klan was organized

by southern whites in 1866, and a similar organization appeared with the

romantic title of the Knights of the White Camellia.  In 1868, a wave of

murders and assaults was launched including assassinations designed to

keep Negroes from the polls.{16}  The States themselves were helpless,

despite the resort by some of them to extreme measures such as making it

legal to hunt down and shoot any disguised man.{17}



Within the Congress, pressures mounted in the period between the end of

the war and 1870 for drastic measures.  A few months after the

ratification of the Thirteenth Amendment on December 6, 1865, Congress,

on April 9, 1866, enacted the Civil Rights Act of 1866, which, as we

have described, included  242 in its originally narrow form.  On June

13, 1866, the Fourteenth Amendment was proposed, and it was ratified in

July, 1868.  In February, 1869, the Fifteenth Amendment was proposed,

[383 U.S. 805] and it was ratified in February, 1870.  On May 31, 1870,

the Enforcement Act of 1870 was enacted.



In this context, it is hardly conceivable that Congress intended  241 to

apply only to a narrow and relatively unimportant category of

rights.{18}  We cannot doubt that the purpose and effect of  241 was to

reach assaults upon rights under the entire Constitution, including the

Thirteenth, Fourteenth and Fifteenth Amendments, and not merely under

part of it.



This is fully attested by the only statement explanatory of  241 in the

recorded congressional proceedings relative to its enactment.  We refer

to the speech of Senator Pool of North Carolina, who introduced the

provisions as an amendment to the Enforcement Act of 1870.  The

Senator's remarks are printed in full in the Appendix to this

opinion.{19}  He urged that the section was needed in order to punish

invasions of the newly adopted Fourteenth and Fifteenth Amendments to

the Constitution.  He acknowledged that the States, as such, were beyond

the reach of the punitive process, and that the legislation must

therefore operate upon individuals.  He made it clear that "It matters

not whether those individuals be officers or whether they are acting

upon their own responsibility."  We find no evidence whatever that

Senator Pool intended that  241 should not cover violations [383 U.S.

806] of Fourteenth Amendment rights, or that it should not include state

action or actions by state officials.



We conclude, therefore, that it is incumbent upon us to read  241 with

full credit to its language.  Nothing in the prior decisions of this

Court or of other courts which have considered the matter stands in the

way of that conclusion.{20}



The present application of the statutes at issue does not raise

fundamental questions of federal-state relationships.  We are here

concerned with allegations which squarely and indisputably involve state

action in direct violation of the mandate of the Fourteenth Amendment --

that no State shall deprive any person of life or liberty without due

process of law.  This is a direct, traditional concern of the Federal

Government.  It is an area in which the federal interest has existed for

at least a century, and in which federal participation has intensified

as part of a renewed emphasis upon civil rights.  Even as recently as

1951, when Williams I was decided, the federal role in the establishment

and vindication of fundamental rights -- such as the freedom to travel,

nondiscriminatory access to public areas and nondiscriminatory

educational facilities -- was neither as pervasive nor as intense as it

is today.  Today, a decision interpreting a federal law in accordance

with its historical design, to punish denials by state action of

constitutional rights of the person, can hardly be regarded as adversely

affecting "the wise adjustment between State responsibility and national

control. . . ."  Williams I, [383 U.S. 807] 341 U.S. at 73 (opinion of

Frankfurter, J.).  In any event, the problem, being statutory, and not

constitutional, is ultimately, as it was in the beginning, susceptible

of congressional disposition.



Reversed and remanded.



MR. JUSTICE BLACK concurs in the judgment and opinion of the Court

except insofar as the opinion relies upon United States v. Williams, 341

U.S. 58; United States v. Williams, 341 U.S. 70, and Williams v. United

States, 341 U.S. 97. APPENDIX TO OPINION OF THE COURT.



Remarks of Senator Pool of North Carolina on sponsoring Sections 5, 6

and 7 of the Enforcement Act of 1870 (Cong.Globe, 41st Cong., 2d Sess.,

pp. 3611-3613):



Mr. POOL.  Mr. President, the question involved in the proposition now

before the Senate is one in which my section of the Union is

particularly interested, although, since the ratification of the

fifteenth amendment, which we are now about to enforce by appropriate

legislation, other sections of the country have become more or less

interested in the same question.  It is entering upon a new phase of

reconstruction; that is, to enforce by appropriate legislation those

great principles upon which the reconstruction policy of Congress was

based.  I said upon a former occasion on this floor that the

reconstruction policy of Congress had been progressive, and that it was

necessary that it should be progressive still.  The mere act of

establishing governments in the recently insurgent States was one thing;

the great principles upon which Congress proposed to proceed in

establishing those governments was quite another thing, involving

principles which lie at the very foundation of all that has been done,

and which are intimately connected [383 U.S. 808] with all the results

that must follow from that and from the legislation of Congress

connected with the whole subject.



Mr. President, the first thing that was done was the passage of the

thirteenth amendment by which slavery in the United States was

abolished.  By that, four millions of people were taken out from under

the protecting hand of interested masters and turned loose to take care

of themselves.  They were turned loose and put upon their own resources

in communities which were imbued with prejudices against them as a race,

communities which, for the most part, had for years past -- indeed from

the very time when those who are now in existence were born -- been

taught and had instilled into them a prejudice against the equality

which has been attempted to be established for the colored citizens of

the United States.



Mr. President, the condition which that thirteenth amendment imposed on

the late insurrectionary States was one which demanded the serious

consideration and attention of this Government.  The equality which by

the thirteenth, fourteenth, and fifteenth amendments has been attempted

to be secured for the colored men, has not only subjected them to the

operation of the prejudices which had theretofore existed, but it has

raised against them still stronger prejudices and stronger feelings in

order to fight down the equality by which it is claimed they are to

control the legislation of that section of the country.  They were

turned loose among those people, weak, ignorant, and poor.  Those among

the white citizens there who have sought to maintain the rights which

you have thrown upon that class of people, have to endure every species

of proscription, of opposition, and of vituperation in order to carry

out the policy of Congress, in order to lift up and to uphold the rights

which you have conferred upon that class.  It is [383 U.S. 809] for that

reason not only necessary for the freedmen, but it is necessary for the

white people of that section that there should be stringent and

effective legislation on the part of Congress in regard to these

measures of reconstruction.



We have heard on former occasions on the floor of the Senate that there

were organizations which committed outrages, which went through

communities for the purposes of intimidating and coercing classes of

citizens in the exercise of their rights.  We have been told here that

perhaps it might be well that retaliation should be resorted to on the

part of those who are oppressed.  Sir, the time will come when

retaliation will be resorted to unless the Government of the United

States interposes to command and to maintain the peace; when there will

be retaliation and civil war; when there will be bloodshed and tumult in

various communities and sections.  It is not only necessary for the

freedmen, but it is important to the white people of the southern

section, that, by plain and stringent laws, the United States should

interpose and preserve the peace and quiet of the community.



The fifteenth amendment to the Constitution of the United States

provides that the right of citizens of the United States to vote shall

not be denied or abridged by the United States, or by any State on

account of race, color, or previous condition of servitude.  It speaks

of "the right of citizens to vote."  It has been said that voting is a

privilege; but this amendment recognizes it as a right in the citizen,

and this right is not to "be denied or abridged by the United States, or

by any State."  What are we to understand by that?  Can individuals

abridge it with impunity?  Is there no power in this Government to

prevent individuals or associations of individuals from abridging or

contravening that provision of the Constitution?  If that be so,

legislation is unnecessary.  If our legislation is to apply only to the

[383 U.S. 810] States, it is perfectly clear that it is totally

unnecessary, inasmuch as we cannot pass a criminal law as applicable to

a State; nor can we indict a State officer as an officer.  It must apply

to individuals.  A State might attempt to contravene that provision of

the Constitution by passing some positive enactment by which it would be

contravened, but the Supreme Court would hold such enactment to be

unconstitutional, and, in that way, the State would be restrained.  But

the word "deny" is used.  There are various ways in which a State may

prevent the full operation of this constitutional amendment.  It cannot

-- because the courts would prevent it -- by positive legislation, but

by acts of omission it may practically deny the right.  The legislation

of Congress must be to supply acts of omission 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 to supply that omission, and by its own laws

and by its own courts to go into the States for the purpose of giving

the amendment vitality there.



The word "deny" is used not only in this fifteenth amendment, but I

perceive in the fourteenth amendment it is also used.  When the

fourteenth amendment was passed, there was in existence what is known as

the civil rights bill, a part of which has been copied in the Senate

bill now pending.  The civil rights bill recognized all persons born or

naturalized in the United States as citizens, and provided that they

should have certain rights which were enumerated.  They are "to make and

enforce contracts, to sue, be made parties, give evidence, to inherit,

purchase, lease, sell, hold and convey real and personal property," and

to "the full and equal benefit of all laws and proceedings for the

security of person and property." [383 U.S. 811]



The civil rights bill was to be enforced by making it criminal for any

officer, under color of any State law, "to subject, or cause to be

subjected, any citizen to the deprivation of any of the rights secured

and protected" by the act.  If an officer of any State were indicted for

subjecting a citizen to the deprivation of any of those rights, he was

not to be indicted as an officer; it was as an individual.  And so,

under the fourteenth amendment to the Constitution, no State shall make

or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of

life, liberty, or property without due process of law, nor deny to any

person within its jurisdiction the equal protection of the laws. There,

the word "deny" is used again; it is used in contradistinction to the

first clause, which says, "No State shall make or enforce any law" which

shall do so and so.  That would be a positive act which would contravene

the right of a citizen; but to say that it shall not deny to any person

the equal protection of the law it seems to me opens up a different

branch of the subject.  It shall not deny by acts of omission, by a

failure to prevent its own citizens from depriving by force any of their

fellow citizens of these rights.  It is only when a State omits to carry

into effect the provisions of the civil rights act, and to secure the

citizens in their rights, that the provisions of the fifth section of

the fourteenth amendment would be called into operation, which is, "that

Congress shall enforce by appropriate legislation the provisions of this

article."



There is no legislation that could reach a State to prevent its passing

a law.  It can only reach the individual citizens of the State in the

enforcement of law.  You have, therefore, in any appropriate

legislation, to act on the citizen, not on the State.  If you pass an

act by which you make it an indictable offense for an officer [383 U.S.

812] to execute any law of a State by which he trespasses upon any of

these rights of the citizen it operates upon him as a citizen, and not

as an officer.  Why can you not just as well extend it to any other

citizen of the country?



It is, in my judgment, incumbent upon Congress to pass the most

stringent legislation on this subject.  I believe that we have a perfect

right under the Constitution of the United States, not only under these

three amendments, but under the general scope and features and spirit of

the Constitution itself, to go into any of these States for the purpose

of protecting and securing liberty.  I admit that, when you go there for

the purpose of restraining liberty, you can go only under delegated

powers in express terms; but to go into the States for the purpose of

securing and protecting the liberty of the citizen and the rights and

immunities of American citizenship is in accordance with the spirit and

whole object of the formation of the Union and the national Government.



There are, Mr. President, various ways in which the right secured by the

fifteenth amendment may be abridged by citizens in a State.  If a State

should undertake by positive enactment, as I have said, to abridge the

right of suffrage, the courts of the country would prevent it, and I

find that, in section two of the bill which has been proposed as a

substitute by the Judiciary Committee of the Senate, provision is made

for cases where officers charged with registration or officers charged

with the assessment of taxes and with making the proper entries in

connection therewith, shall refuse the right to register or to pay taxes

to a citizen.  I believe the language of the Senate bill is sufficiently

large and comprehensive to embrace any other class of officers that

might be charged with any act that was necessary to enable a citizen to

perform any prerequisite to voting.  But, sir, individuals may prevent

the exercise of the right of [383 U.S. 813] suffrage; individuals may

prevent the enjoyment of other rights which are conferred upon the

citizen by the fourteenth amendment, as well as trespass upon the right

conferred by the fifteenth.  Not only citizens, but organizations of

citizens, conspiracies, may be and are, as we are told, in some of the

States formed for that purpose.  I see in the fourth section of the

Senate bill a provision for cases where citizens, by threats,

intimidation, bribery, or otherwise prevent, delay, or hinder the

exercise of this right; but there is nothing here that strikes at

organizations of individuals, at conspiracies for that purpose.  I

believe that any bill will be defective which does not make it a highly

penal offense for men to conspire together, to organize themselves into

bodies, for the express purpose of contravening the right conferred by

the fifteenth amendment.



But, sir, there is a great, important omission in this bill, as well as

in that of the House.  It seems not to have struck those who drew either

of the two bills that the prevention of the exercise of the right of

suffrage was not the only or the main trouble that we have upon our

hands.  Suppose there shall be an organization of individuals, or, if

you please, a single individual, who shall take it upon himself to

compel his fellow citizens to vote in a particular way.  Suppose he

threatens to discharge them from employment, to bring upon them the

outrages which are being perpetrated by the Kuklux organizations, so as

not to prevent their voting, but to compel them to vote in accordance

with the dictates of the party who brings this coercion upon them.  It

seems to me it is necessary that we should legislate against that.  That

is a more threatening view of the subject than the mere preventing of

registration or of entering men's names upon the assessment books for

taxation or of depositing the ballot in the box.  I think the bill

cannot be perfected to meet the emergencies of the occasion [383 U.S.

814] unless there be a section which meets that view of the case.



The Senator from Indiana [Mr. Morton] asks whether I have drawn an

amendment to that effect.  I have, but I cannot offer it at this time,

for the simple reason that there is an amendment to an amendment

pending.



Mr. MORTON.  Let it be read for information.



Mr. POOL.  It has been printed, and I send it to the desk to be read for

information.



The Chief Clerk read the amendment intended to be proposed by Mr. Pool,

as follows:



Insert after section four of the Senate bill the following sections:



SEC. 5.  And be it further enacted, That it shall be unlawful for any

person, with intent to hinder or influence the exercise of the right of

suffrage as aforesaid, to coerce or intimidate, or attempt to coerce or

intimidate any of the legally qualified voters in any State or

Territory.  Any person violating the provisions of this section shall be

held guilty of a misdemeanor, and on conviction thereof shall be fined

or imprisoned, or both, in the discretion of the court:  the fine not to

exceed $1,000, and the imprisonment not to exceed one year.



SEC. 6.  And be it further enacted, That if two or more persons shall

band or conspire together, or go in disguise upon the public highway, or

upon the premises of another, with intent to violate any provision of

this act, or to injure, oppress, threaten, or intimidate any citizen

with intent to prevent or hinder his free exercise and enjoyment of any

right or privilege granted or secured to him by the Constitution or laws

of the United States, such person shall be held guilty of felony, and on

conviction thereof shall be fined and imprisoned; the fine not to exceed

$5,000 and the imprisonment not to exceed ten years, and shall,

moreover, be thereafter ineligible to and disabled from holding any

office or place of honor, [383 U.S. 815] profit, or trust created by the

Constitution or laws of the United States.



SEC. 7.  And be it further enacted, That if in the act of violating any

provision in either of the two preceding sections, any other felony,

crime, or misdemeanor shall be committed, the offender may be indicted

or prosecuted for the same in the courts of the United States, as

hereinafter provided, for violations of this act, and on conviction

thereof shall be punished for the same with such punishments as are

attached to like felonies, crimes, and misdemeanors by the laws of the

State in which the offense may be committed.



Strike out section twelve and substitute therefor the following:



And be it further enacted, That the President of the United States, or

such person as he may empower for that purpose, may employ in any State

such part of the land and naval forces of the United States, or of the

militia, as he may deem necessary to enforce the complete execution of

this act, and with such forces may pursue, arrest, and hold for trial

all persons charged with the violation of any of the provisions of this

act, and enforce the attendance of witnesses upon the examination or

trial of such persons. *    *    *    *



Mr. POOL.  The Senator from Indiana asked if I had an amendment prepared

which met the view of the case I was presenting in regard to the

compelling of citizens to vote in a particular way.  The first section

of the amendment which I have offered uses this language:



That it shall be unlawful for any person with intent to hinder or

influence the exercise of the right of suffrage as aforesaid, to coerce

or intimidate or attempt to coerce or intimidate any of the legally

qualified voters in any State or Territory. [383 U.S. 816]



But, Mr. President, there is another view which seems to have been lost

sight of entirely by those who have drawn both the House bill and the

bill now pending before the Senate, and from which we apprehend very

much danger.  It is this:  the oppression of citizens because of having

voted in a particular way, or having voted at all.  It may often happen,

as it has happened up to this time already, that, upon the close of an

election, colored persons will be discharged from employment by their

employers.  They may be subjected to outrages of various kinds because

they have participated in an election, and cast their votes in a

particular way.  That is not done for the purpose of punishment so much

as for the purpose of deterring them from voting in any succeeding

election, or from voting in a way that those who perpetrate these

outrages do not desire them to do.  I find that branch of the subject is

entirely left out of view in the bill.



There is another feature of my amendment which I deem of some

importance. I t is this:



That if in the act of violating any provision in either of the two

preceding sections any other felony, crime, or misdemeanor shall be

committed, the offender may be indicted or prosecuted for the same in

the courts of the United States.



I think the most effective mode of preventing this intimidation and

these attempts at coercion, as well as the outrages which grow out of

these attempts, would be found in making any offense committed in the

effort to violate them indictable before the courts of the United

States.  As was said before in the discussion of the Georgia question in

the Senate, the juries in the communities where these outrages are

committed are often composed of men who are engaged in them, or of their

friends, or of those who connive at them, or of persons [383 U.S. 817]

who are intimidated by them, and in many instances they dare not bring

in a true bill when there is an attempt to indict, or if a true bill be

found, they dare not go for conviction on the final trial.  It is for

that reason that I believe it will be better, it will be the only

effective remedy, to take such offenders before the courts of the United

States, and there have them tried by a jury which is not imbued with the

prejudices and interests of those who perpetrate the crimes.



These are the principal features of the amendment which I have drawn in

the effort to perfect this bill, and there is another one to which I

will call the attention of the Senate.  It is that in regard to calling

out the military forces of the United States.  I find that, in the civil

rights bill, as in the bill which has been introduced by the Senate

Judiciary Committee, the President is authorized, either by himself or

by such person as he may empower for that purpose, to use the military

forces of the United States to enforce the act.  There in both instances

it stops.  It has been objected to here that the expression, "or such

other person as he may empower for that purpose," should not be in the

bill; that it may be subject to abuse.  I think it would have no good

effect to keep that language in.  The President may send his officers,

and he may empower whomsoever he pleases to take charge of his forces,

without any such provision.



But there is a use for these forces which seems not to have been

adverted to in either the civil rights bill or in the bill that is now

pending before the Senate.  It is the holding of these offenders for

examination and trial after they are arrested.  Their confederates, if

they are put in the common prisons of the State, will, in nine cases out

of ten, release them.  But more important still is it to use these

forces to compel the attendance of witnesses, for a subterfuge resorted

to is to keep witnesses away [383 U.S. 818] from the trial.  In many

instances, witnesses are more or less implicated in the commission of

the offense.  In other cases, the witnesses are intimidated, and cannot

be obtained upon the trial.  So, in the amendment which I have prepared,

I have proposed that these forces may be used to enforce the attendance

of witnesses both upon the examination and the trial.  My purpose in

introducing this was to perfect the Senate bill.  I think, as I said

yesterday, that that bill is liable to less objection than the House

bill.  I think it is more efficacious in its provisions.  I think it is

better that the Senate should direct its attention to perfecting that

bill, in order that it may be made, when perfected, a substitute for the

bill that came from the House.



That much being said upon the purpose of perfecting the bill and making

it efficacious, I have very little more to say.  I did not intend when I

rose to say much upon the general power, which has been questioned here,

to pass any law at all.  I think it is better to do nothing than to do

that which will not have the proper effect.  To do that which will not

accomplish the purpose would be worse than doing nothing at all.  That

the United States Government has the right to go into the States and

enforce the fourteenth and the fifteenth amendments is, in my judgment,

perfectly clear, by appropriate legislation that shall bear upon

individuals.  I cannot see that it would be possible for appropriate

legislation to be resorted to except as applicable to individuals who

violate or attempt to violate these provisions.  Certainly we cannot

legislate here against States.  As I said a few moments ago, it is upon

individuals that we must press our legislation.  It matters not whether

those individuals be officers or whether they are acting upon their own

responsibility; whether they are acting singly or in organizations.  If

there is to be appropriate legislation at all, it must be that which

applies to individuals. [383 U.S. 819]



I believe that the United States has the right, and that it is an

incumbent duty upon it, to go into the States to enforce the rights of

the citizens against all who attempt to infringe upon those rights when

they are recognized and secured by the Constitution of the country.  If

we do not possess that right, the danger to the liberty of the citizen

is great indeed in many parts of this Union.  I think this question will

come time and again as years pass by, perhaps before another year, in

different forms before the Senate.  It is well that we should deal with

it now, and deal with it squarely, and I hope that the Senate will not

hesitate in doing so.



Mr. President, the liberty of a citizen of the United States, the

prerogatives, the rights, and the immunities of American citizenship,

should not be and cannot be safely left to the mere caprice of States

either in the passage of laws or in the withholding of that protection

which any emergency may require.  If a State by omission neglects to

give to every citizen within its borders a free, fair, and full exercise

and enjoyment of his rights it is the duty of the United States

Government to go into the State, and, by its strong arm, to see that he

does have the full and free enjoyment of those rights.



Upon that ground the Republican party must stand in carrying into effect

the reconstruction policy, or the whole fabric of reconstruction, with

all the principles connected with it, amounts to nothing at all, and, in

the end, it will topple and fall unless it can be enforced by the

appropriate legislation, the power to enact which has been provided in

each one of the great charters of liberty which that party has put forth

in its amendments to the Constitution.  Unless the right to enforce it

by appropriate legislation is enforced stringently and to the point, it

is clear to my mind that there will be no efficacy whatever in what has

been done up to this time to carry out and to establish that policy.

[383 U.S. 820]



I did not rise, sir, for the purpose of arguing the question very much

in detail.  I did not rise for the purpose of making any appeals to the

Senate, but more for the purpose of asserting here and arguing for a

moment the general doctrine of the right of the United States to

intervene against individuals in the States who attempt to contravene

the amendment to the Constitution which we are now endeavoring to

enforce, and for the purpose of calling attention to the defects in the

bill and offering a remedy for them. Footnotes FORTAS, J., lead opinion

(Footnotes)



1. One of the defendants charged in the two indictments, James E.

Jordan, is not a party to the present appeal.  His case was transferred

under Rule 20, Fed.Rules Crim.Proc., to the United States District Court

for the Middle District of Georgia.



2. Cf. Mr. Justice Holmes in United States v. Mosley, 238 U.S. 383, 386

(a federal voting rights case under an earlier version of  241):  "It is

not open to question that this statute is constitutional. . . ."  The

source of congressional power in this case is, of course,  5 of the

Fourteenth Amendment, which reads:  "The Congress shall have power to

enforce, by appropriate legislation, the provisions of this article."



There are three "Williams" cases arising from the same events.  The

first, with no bearing on the present appeal, is United States v.

Williams, 341 U.S. 58, involving a prosecution for perjury.  The second,

United States v. Williams, 341 U.S. 70, was a prosecution for violation

of  241; it will be referred to hereinafter as Williams I.  The third,

Williams v. United States, 341 U.S. 97, was a prosecution for violation

of  242; it will be referred to as Williams II.



3. In the interest of clarity, we shall use the present designation of

the statutes throughout this discussion.  Reference is made to the

Appendix to Mr. Justice Frankfurter's opinion in Williams I, 341 U.S. at

83, which contains a table showing major changes in the statutes through

the years.



4. If . . . the offense, the commission of which is the object of the

conspiracy, is a misdemeanor only, the punishment for such conspiracy

shall not exceed the maximum punishment provided for such misdemeanor.

18 U.S.C.  371 (1964 ed.).



5. This is settled by our decisions in Screws v. United States, 325 U.S.

91,  and Williams II, 341 U.S. at 99-100.



6. . . . where police take matters in their own hands, seize victims,

beat and pound them until they confess, there cannot be the slightest

doubt that the police have deprived the victim of a right under the

Constitution.  It is the right of the accused to be tried by a legally

constituted court, not by a kangaroo court. Williams II, 341 U.S. at

101.



7. "Under color" of law means the same thing in  242 that it does in the

civil counterpart of  242, 42 U.S.C.  1983 (1964 ed.).  Monroe v. Pape,

365 U.S. 167, 185 (majority opinion), 212 (Frankfurter, J., dissenting).

 In cases under  1983, "under color" of law has consistently been

treated as the same thing as the "state action" required under the

Fourteenth Amendment.  See, e.g., Smith v. Allwright, 321 U.S. 649;

Terry v. Adams, 345 U.S. 461; Simkins v. Moses H. Cone Memorial

Hospital, 323 F.2d 959 (C.A.4th Cir.), cert. denied, 376 U.S. 938; Smith

v. Holiday Inns, 336 F.2d 630 (C.A. 6th Cir.); Hampton v. City of

Jacksonville, 304 F.2d 320 (C.A. 5th Cir.), cert. denied, 371 U.S. 911;

Boman v. Birmingham Transit Co., 280 F.2d 531 (C.A. 5th Cir.); Kerr v.

Enoch Pratt Free Library, 149 F.2d 212 (C.A.4th Cir.), cert. denied, 326

U.S. 721.



The contrary view in a  242 context was expressed by the dissenters in

Screws, 325 U.S. at  and was rejected then, later in Williams II, and

finally -- in a  1983 case -- in Monroe v. Pape, supra.  Cf. Peterson v.

City of Greenville, 373 U.S. 244, 250 (separate opinion of HARLAN, J.). 

Recent decisions of this Court which have given form to the "state

action" doctrine make it clear that the indictments in this case allege

conduct on the part of the "private" defendants which constitutes "state

action," and hence action "under color" of law within  242.  In Burton

v. Wilmington Parking Authority, 365 U.S. 715, we held that there is

"state action" whenever the State has so far insinuated itself into a

position of interdependence [with the otherwise "private" person whose

conduct is said to violate the Fourteenth Amendment] . . . that it must

be recognized as a joint participant in the challenged activity, which,

on that account, cannot be considered to have been so "purely private"

as to fall without the scope of the Fourteenth Amendment. 365 U.S. at

725.  Cf. Pennsylvania v. Board of Trusts, 353 U.S. 230; Evans v.

Newton, 382 U.S. 296; Peterson v. City of Greenville, 373 U.S. 244;

Lombard v. Louisiana, 373 U.S. 267; Robinson v. Florida, 378 U.S. 153;

Griffin v. Maryland, 378 U.S. 130; American Communication An. v. Douds,

339 U.S. 382, 401; Public Utilities Comm'n v. Pollak, 343 U.S. 451;

Smith v. Allwright, 321 U.S. 649; Terry v. Adams, 345 U.S. 461, Williams

II, 341 U.S. at 99-100.



8. See also Mr. Justice Rutledge, concurring in result, in Screws v.

United states, 325 U.S. 91, 120.



9. It would be strange indeed were this Court to revert to a

construction of the Fourteenth Amendment which would once again narrow

its historical purpose -- which remains vital and pertinent to today's

problems.  As is well known, for many years after Reconstruction, the

Fourteenth Amendment was almost a dead letter as far as the civil rights

of Negroes were concerned.  Its sole office was to impede state

regulation of railroads or other corporations.  Despite subsequent

statements to the contrary, nothing in the records of the congressional

debates or the Joint Committee on Reconstruction indicates any

uncertainty that its objective was the protection of civil rights.  See

Stampp, The Era of Reconstruction, 1865-1877, 136-137 (1965).



10. The official title is "An Act to enforce the Right of Citizens of

the United States to vote in the several States of this Union, and for

other Purposes."



11. The substantial difference in coverage of the two sections as they

were in the Act of 1870 precludes the argument that  241 should be

narrowly construed to exclude Fourteenth Amendment rights because

otherwise it would have been duplicative of  242 taken in conjunction

with the general conspiracy statute, 18 U.S.C.  371.  If, as we hold, 

241 was intended to cover all Fourteenth Amendment rights, it was far

broader in 1870 than was  242.  For other reasons for rejecting the

duplication argument, see the opinion of MR. JUSTICE DOUGLAS in Williams

I, 341 U.S. at 88, n. 2.



12. See 14 Stat. 74; 17 Stat. 579; S.Misc.Doc. No. 101, 40th Cong., 2d

Sess.; H.Misc.Doc. No. 31, 40th Cong., 3d Sess.; S.Misc.Doc. No. 3, 42d

Cong., 2d Sess.; 2 Cong.Rec. 646, 648, 1029, 1210, 1461.



13. The opinion of MR. JUSTICE DOUGLAS in Williams I, 341 U.S. at 88,

disposes of the argument that the words of  241 themselves suggest the

narrow meaning which the opinion of Mr. Justice Frankfurter found in the

section.



14. See generally Stampp, The Era of Reconstruction, 1865-1877 (1965);

Nevins, The Emergence of Modern America, 1865-1878 (1927).



15. See H.R.Rep. No. 16, 39th Cong., 2d Sess., p. 12 et seq.



16. Cf. Nevins, op. cit. supra, at 351.



17. See id. at 352; Morison, Oxford History of the American People

722-723 (1965).



18. See, for example, United States v. Waddell, 112 U.S. 76 (right to

perfect a homestead claim); United States v. Classic, 313 U.S. 299

(right to vote in federal elections); Loan v. United States, 144 U.S.

263 (right to be secure from unauthorized violence while in federal

custody); In re Quarles, 158 U.S. 532 (right to inform of violations of

federal law).  Cf. also United States v. Cruikshank, 92 U.S. 542, 552;

Hague v. CIO, 307 U.S. 496, (opinion of Roberts, J.); Collins v.

Hardyman, 341 U.S. 651, 660.



19. We include these remarks only to show that the Senator clearly

intended  241 to cover Fourteenth Amendment rights.



20. This Court has rejected the argument that the constitutionality of 

241 may be affected by undue vagueness of coverage.  The Court held with

reference to  242 that any deficiency is cured by the requirement that

specific intent be proved.  Screws v. United States, 325 U.S. 91.  There

is no basis for distinction between the two statutes in this respect. 

See Williams I, 341 U.S. at 93-95 (DOUGLAS, J.).

