United States v. Guest

PETITIONER:United States
RESPONDENT:Herbert Guest et al.
LOCATION:Where Penn was killed

DOCKET NO.: 65
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 383 US 745 (1966)
ARGUED: Nov 09, 1965
DECIDED: Mar 28, 1966

Facts of the case

On July 11, 1964 Lt. Col. Lemuel Penn was shot and killed by three members of the Ku Klux Klan while driving home from Washington, D.C. The alleged shooters, James Lackey, Cecil Myers, and Howard Sims, were indicted but acquitted by an all-white jury. Following the acquittal, the three defendants were indicted on charges of conspiracy to threaten, abuse, and kill African- Americans. Three alleged co-conspirators, Denver Phillips, George Turner, and Herbert Guest, were also charged. U.S. Code defines criminal conspiracy as two or more individuals conspiring 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.” The indictment filed against the six alleged conspirators accused them of acting to deny African-Americans full and equal enjoyment and utilization of goods and services, including access to state highways and free travel to and from Georgia on public streets. The defendants moved to dismiss the indictment, arguing that it did not allege a specific denial of rights under U.S. law. The district court agreed, and dismissed the indictment. The prosecution appealed, arguing that the indictment alleged, in part, a denial of rights under the Equal Protection Clause of the Fourteenth Amendment.

Question

Did the alleged actions of the six defendants constitute a denial of rights under the Constitution and U.S. law?

Earl Warren:

Number 65, United States, Appellant, versus Herbert Guest et al.

Mr. Solicitor General.

Thurgood Marshall:

May it please the Court.

As I mentioned to the Court in this case we are limited again to the allegation indictment and in this indictment it charges six individuals, which engaged in a criminal conspiracy in violation of 241.

None of the defendants in this case were alleged to hold public office, nor any of them alleged to be acting under color of the law.

I think the indictment that very well could be read, because it’s very short.

After the beginning thought, the charge is the one that to deny the rights to the foreign equal enjoyment of good services, facilities, privileges, advantages and an accommodations of motion picture theaters, restaurants and other places of public accommodation.

And two, 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.

And three, 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.

Four, 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, and five, other rights exercised and enjoyed by white citizens in the vicinity of Athens, Georgia.

And I say at this point that the government agrees with everybody else that five adds nothing to the indictment, it could very well be left out.

It was a part of a plan it ‘s alleged, it was a part of the plan and purpose of the conspiracy that its objects be achieved by various means including the following, shooting Negroes, beating Negroes, killing Negroes, by damaging and destroy property of Negroes, by pursuing Negroes in automobiles and threatening them with guns, by making telephone calls to Negroes to threaten their lives, property, and persons, and by making such threats in person, by going in disguise on the highway and on the premises of other persons, by causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts, and by burning crosses at night in public view all in violation of 241 and the District Court in a very extended opinion, sustained the motion to dismiss as to all the defendants.

Now it’s obvious that the indictment charge is single conspiracy, generally directed at preventing Negroes from exercise and/or enjoying their civil rights.

We take the position that the national government had the power under Section 5 of the Fourteenth Amendment to authorize punishment of conspiracies having the specific purpose of preventing Negroes from enjoying the public facilities, opened up to them by a state pursuant to Section 1 of the same amendment and that’s exactly what the Congress did.

Mr. Justice Holmes 50 years ago said, “The other sections have been repealed speaking of the Ku Klux Klan sections, but Section 19 it maybe said much mean what it meant in 1870 when the enforcement act was passed and what it did mean will be seen more clearly from the original words.

The source of this Section, the doings of the Ku Klux Klan and the like is obvious.

The acts of violence obviously were on the minds of Congress.

Naturally, the Congress put forth all its powers but this section dealt with federal rights and with all federal rights and protected them in the law,” “all of the federal rights and protected them in the law.”

In other words the Congress did the best it could by using the broad language.

Now, the rights here involved are spelled out in the indictment and they fall into three main categories, first, rights grounded in the Equal Protection Clause, specifically the right to the equal utilization without discrimination upon the basis of race of all public utilities owned, operated or managed by the state including the streets and highways et cetera.

Secondly, the right to travel freely to and from any state and the right to use its instrumentalities of interstate commerce, three, the right to equal advantages of restaurants, motion picture theaters and other privately owned places of public accommodation guaranteed by Title II of the Civil Rights Act of 1964.

The right to the nondiscriminatory use of public facilities owned or operated by the state itself is one grounded in the Equal Protection Clause of the Fourteenth Amendment.

And again in the light of, I have here United States v. Williams but I should add, in the light of the opinion of Mr. Justice Douglas in United States versus Williams, the threshold question with respect to this branch of the case is whether Section 241 protects Fourteenth Amendment rights at all.

The District Judge said no.

For an affirmative answer on the issue we rely upon the brief in the case we’ve just argued, but in addition we say, “Following the legislative history, we show and operate that Section 241 was meant to reach private individuals acting in conspiracy and once you apply the strict requirements of the Screws case we urged that so construed the statute is not impermissibly vague.”

The heart of the case is easily laid bare.

Appellees are charged with the conspiracy to use force and violence for this specific purpose of preventing Negroes from daring to use the park, swimming pools, other facilities which the state of Georgia had a constitutional duty and was prepared to afford them equally with its white citizens.

The identical situation might well arise with respect to schools.

If a state maintains a public school system it must open the door to Negroes within the area it serves as well as the white people.

For the school authorities, the bar [Inaudible] because the race is a plain violation of Fourteenth Amendment.

Thurgood Marshall:

The question here is simply whether the United States may also remove the obstruction interposed by Daniel Tucks who stand outside the door and because of race keep the Negro children from approaching it or who as in the present case roam the neighborhood, threatening with violence any Negro family with six fabulous children enjoy the unsegregated education which the state has a constitutional duty to provide and which it is providing.

And our answer is that this United States has this power and it has this power as an adjunct of its right and duty to enforce the state’s obligation to provide equal educational facilities without segregation.

Would your argument encompass Mr. Stewart — yeah, Mr. Justice Stewart’s hypothetical in the last case?

Could the Congress make it a — the murdering of a Negro a crime — federal crime.

Thurgood Marshall:

No sir.

I think the language in the Wardell case clears it up pretty well.

The United States versus Wardell, this Court said “The right here guaranteed is not the mere right of protection against personal violence.”

This is the result of an ordinary quarrel or malice would be kind of blended laws of the state and by the Courts.

We are not urging it at all and later on I’ll give exactly what we say for example, if these same defendants in this case just went out and solely because they didn’t like Negroes, they shot and murdered one, that wouldn’t be under the statute, wouldn’t be on ether one of course and I doubt that Congress would have that power.

I think that the — we take no quarrel with the position, that the right to punish for murder is inherently the state’s job to do.

We don’t even go so far as to say the federal government can only move in if the state doesn’t do it.

We say that these are two rights which we’re talking about.

One is the — that once the state under the Fourteenth Amendment and pursuant to the requirement under the first section abolishes segregation and discrimination of all kinds then once they do that then the Congress under the fifth section had the right to make sure it worked.

Does the indictment allege as part that the purpose of this was to obstruct the state in fulfilling it’s obligations under the Fourteenth Amendment?

Thurgood Marshall:

No, it was — for the purpose of denying to this people their rights.

Abe Fortas:

Well, why do you say the State has strike first?

That is your — what you say.

Thurgood Marshall:

Well, for two reasons.

One, is it is true that in this particular area the State is acting to —

Abe Fortas:

State may act but do you mean to say that the state has to act first before the federal power is going to come into play?

Thurgood Marshall:

Well, I think it would be a problem there as to what was the purpose of the intimidation.

You see that the crime would never come up.

There’s no need to intimidate somebody if the State is preventing it.

If the State Policeman says “You can’t come down this street, there’s no need for the private individual to tell you, you can’t go.”

But when the state says you are welcome to come down the street and you’re welcome to go in this building then the private individual sometimes lose it.

Abe Fortas:

Yes, but if the State’s policies and laws permit segregation or forbid Negroes to use these public facilities and if there is a private group — a group of private persons who interfere with the Negroes’ use those public facilities, would it be your position that the federal power does not reach those [Inaudible] in that private group?

Thurgood Marshall:

Oh no sir.

I would say it would not reach it.

I’m merely saying that in this case we have the facts which makes it a stronger case, but I didn’t mean at all to say that it wouldn’t have applied before, no sir.

William J. Brennan, Jr.:

Well, let’s see Mr. Solicitor, do I correctly understand you in the substance to say this that however, further it may go in terms of power with the Congress to do so and under an allegation which you say here it relates not only to the murder of this chap on the highway, but an indictment would say that these individuals to the did of other things, beating, damaging and destroying property, pursuing Negroes in automobiles, making telephone calls and all of that, all to the end of discouraging exercise of rights as would tend to the segregated school.

William J. Brennan, Jr.:

Something which the State itself is trying to bring about I think you say.

Thurgood Marshall:

That’s right.

William J. Brennan, Jr.:

That at least to that extent, 241 is an exercise of — constitutional exercise of congressional power —

Thurgood Marshall:

We think it as one of the [Inaudible] ones.

When a group of private citizens get together and say “Look, we are going to plan all of these out for the purpose we’re just sick and tired of what’s going on and we’re going to do it and somebody would suggest to bomb a church like they did in Birmingham, somebody say “Do this like they did in this, why not do that” and the question is whether or not they don’t have to do all of these things to come under it, but where they have all of these charged, I think we intend to rely on, and I don’t see the great magnitude that comes out of the state officers of being involved, I just never had.

But this is a conspiracy of private individuals.

William J. Brennan, Jr.:

No I’m — you said that — as I understood you that they acted a lot of vagueness or commit this — again the combination of schools and Mr. Justice Douglas opinion of William.

Thurgood Marshall:

And the way that this conspiracy charges worded here it’s —

William J. Brennan, Jr.:

Well, what I wanted to get is–

Thurgood Marshall:

It’s now being passed in fear.

William J. Brennan, Jr.:

Aren’t there decisions in the Cruikshank line at least which might be say the least, not support your constitutional argument?

Thurgood Marshall:

It doesn’t.

It do not support, and there is considerable language which is opposed.

William J. Brennan, Jr.:

Well, in terms of vagueness, what’s the gloss that’s been on 241?

Thurgood Marshall:

Well, the vagueness — the vagueness point we say was removed by carefully drawing this indictment within the schools in Williams’s opinions.

As I read it, and I was not around when it was drafted but —

William J. Brennan, Jr.:

I thought the whole business to avoid for vagueness that goes to the point where there — one has adequate, know this before he commits certain conduct but that conduct does — made a crime under certain law.

Would this sort of things under some of the older cases have led one to think before he committed it that he had committed a federal crime under 241.

Thurgood Marshall:

No sir.

My position is that even if it would fall afoul of the language in Cruikshank et cetera, it is definitely within the specific the language in Screws as interpreted by the four judges and Mr. Justice Douglas opinion.

They said that conspiracy puts the necessary intent.

William J. Brennan, Jr.:

Do you remember the troubles Mr. Solicitor General we had with the Wilcox and [Inaudible] you know that so to speak, and the problems we had in James case?

Thurgood Marshall:

Yes sir.

William J. Brennan, Jr.:

Don’t you think there’s anything like that here?

Thurgood Marshall:

Yes, it’s a problem.

I recognize that, but it seems to me that the way this one is drawn, I believe that it can be upheld under the two cases.

I mean that’s my position on it —

Hugo L. Black:

May I ask you this?

As I understood the question of the vagueness in Screws [Inaudible] charged, violated due process of law.

Thurgood Marshall:

Yes sir.

Hugo L. Black:

And the Court called it in — due process of law had been defined in very vague terms that a man could not know whether a thing he was charged with [Inaudible] would violate the fundamental concepts of justice, the Principles of DC.

For that reason, the Court held that so far as due process is concerned it added vagueness to it which requires a man to know that you had to add something to show that the man knew that he wouldn’t be violating the federal law.

I understand from what you’re saying here on these others, that you’re saying it in specific rights that which there can be no doubt or ambiguity, federal rights have have been denied, that had been formed, organization of conspiracy to deny both rights, specific rights.

Thurgood Marshall:

That’s our position and that they’re conspired to do it.

We’re not dealing with the relationship between private people or the protection of any particular class of people against private violence which has been mentioned or the tortuous conduct as a matter of fact.

If a state were to withhold from any class the Equal Protection Laws, the Congress would undoubtedly have the power to act under Section 5.

The indi — indictment here makes no such allegation and we do not pitch our case on that theory.

Our case is built upon the federal duty of the State, when it provides public facilities to provide them equally and the defendants are charged with conspiring to use violence and intimidation with the specific intent of barring Negroes from the fulfillment of their correlative federal right to the equal enjoyment of facility provided by the State on an equal basis.

That we say it’s the power granted in Section 5 of the amendment to enforce the guarantee of equal treatment by the State extends the prevention of those interferences by third persons which are specifically aimed at frustrating the enjoyment of their constitutional assurance.

Those are the only ones we’re interested in.

This —

Are the insurance (Voice Overlap) rely on the insurance against that they interfere into those rights not against private —

Thurgood Marshall:

Well I don’t —

The reason I asked you the question whether it’s an allegation in the indictment the State would be obstructing?

Thurgood Marshall:

No sir.

As I read it — I did not — it just says that the State is open to facilities and they are going against it.

I don’t — our case is not based on any allegation about the state one way or the other expect that the state’s doing it and —

Well, the State’s under an obligation to do it —

Thurgood Marshall:

And the state has recognized that at least that at least the indictment, the State is operating and the difference about as mentioned about no body showing a badge, I’d never thought too much of that when you call up a sheriff and ask him to come in, get into conspiracy and to deny somebody their constitutional rights and the sheriff says, “Wait a minute I’d take my badge off.”

We’re dealing with individuals.

Here we have the state opening up and the state has certain responsibilities, but once the state owns it up nobody should be allowed to prevent the Negro from getting his right.

It’s not the state that’s benefiting under this.

It’s the individual citizen who gets that right, if the state bars it we come into this Court and this Court says you have to stop it.

If the state says “Well, we’ll go ahead and do what we’re supposed to do and break it down,” and hoodlums do the things charged in this indictment then what happens, the rights are nullity and obviously when you read Senator Pool — that’s what Senator Pool was talking about.

He knew this would happen.

I don’t know whether he expected it to wait this long to happen, but for as I read it he expected that to happen.

Potter Stewart:

Your case I suppose would and maybe you’ve already in fact said this that — now let’s assume a state or a community where the public schools had been freely opened and qualify children on a racially unsegregated basis, but if in the neighborhood of — group of toughs just decided we’re not going to let this Negro children go out on the sidewalk to get the school bus this morning because we don’t believe in non-segregated schools.

I suppose those people who conspired to keep those kids from getting to school would be guilty on either theory, would they not?

Thurgood Marshall:

Well, that could —

Potter Stewart:

If that was to that purpose to keep them from going to the school.

Thurgood Marshall:

Well that was the Hoxie case.

Potter Stewart:

— in an unsegregated school.

Thurgood Marshall:

The Hoxie case and all of those cases down in Tennessee that I don’t think any of them came up here, but they were all on that and the local courts granted relief and as a matter of fact the ringleader went to jail.

We also had, we’re also aware of the Little Rock problem.

I mean the government’s not powerless in this situation, but the only thing here is they take no construction of the statute.

William J. Brennan, Jr.:

Do those prosecutions Mr. Solicitor General were under — or any of them under 241?

Thurgood Marshall:

Was that came to [Inaudible]?

What was it?

A contempt?

It was contempt, Hoxie was contempt.

Well yes, I remember yes, the District Court gave an injunction in Knoxville, I think it was and Casper violated it.

William J. Brennan, Jr.:

But there were no prosecutions under this one?

Thurgood Marshall:

No, this was contempt that’s why I say it does — it doesn’t apply here to help us.

It was the inherent power of the Court to see —

William J. Brennan, Jr.:

Well, if you ask Mr. Justice a good question that yes, in that situation that could be a prosecution under 241?

Thurgood Marshall:

I should think so, I should think so.

Hugo L. Black:

That would require you would it not to go to the rest of your case on Section 5, the right of the Congress without such law that it deemed appropriate to prevent discrimination against people on the count of felony?

Thurgood Marshall:

Because that was the old Fourteenth Amendment.

In Strauder an ex parte of Virginia, and even in [Inaudible] case everybody recommend — recognize that.

Oh we’re talking about private discrimination now.

Are you going to address yourself to the constitutional power of Congress to enact such a law?

Thurgood Marshall:

Yes sir.

Yes sir but to pick (Voice Overlap)

Abe Fortas:

[Inaudible]

Thurgood Marshall:

Yes, Mr. Justice Fortas.

Abe Fortas:

This en bancment in the Guest case does not — does it specifically refer to the Fourteenth Amendment, so many words, does it?

Thurgood Marshall:

No, it says equal protection.

Abe Fortas:

Right.

Well, I’m troubled by the interrelationship between the State and the federal and so I followed your argument.

I’d like to ask you this question?

Abe Fortas:

“In your — as you analyze this, whether an en bancment lie under Section 241, if that alleged merely that two or more persons are conspiring to infer a citizen in the pre-exercise of his right to travel in the interstate commerce, that’s what I’m trying to posture a direct what I conceive to be a direct federal right under the Adams theory.

Thurgood Marshall:

Well, we discuss Crandall and Nevada, pretty exhaustively in our brief and I don’t know, this is 45, isn’t it?

Abe Fortas:

Well, this is what’s troubling me because I’m confused now by the interrelationship of state right, federal right under 241 on the basis of what you have said.

Thurgood Marshall:

I think my answer is yes sir.

Abe Fortas:

Your answer is that Section indictment could be properly be laid under Section 241 —

Thurgood Marshall:

I think so.

Abe Fortas:

Only a direct federal right.

Thurgood Marshall:

We have it starting on page 57.

Abe Fortas:

Thank you.

William J. Brennan, Jr.:

Well, do I understand then Mr. Solicitor General what you’re suggesting in answer to Mr. Justice Fortas’ at all events without reference to the Fourteenth Amendment, this indictment can be sustained on the allegations that did utter was the right to travel freely, that’s the Crandall and Nevada created federal rights, is that it?

Thurgood Marshall:

No sir.

I take the position —

William J. Brennan, Jr.:

I don’t think we have —

Thurgood Marshall:

I’m not giving up anything sir.

William J. Brennan, Jr.:

I don’t ask you to give up anything.

Thurgood Marshall:

Yes sir.

William J. Brennan, Jr.:

I’m asking whether without — you’re suggesting that to that extent in answering Mr. —

Thurgood Marshall:

Yes sir.

William J. Brennan, Jr.:

— Fortas, that this indictment should have been sustained, because to that extent without regard to the Fourteenth Amendment an interference with the federal right.

Thurgood Marshall:

If the —

William J. Brennan, Jr.:

Is that what you are saying?

Thurgood Marshall:

Yes sir.

If Crandall still means what I think it means and I admit quite frankly that there’s quite a few people who don’t agree with us on what we think Crandall means, but on the — we didn’t mention the Fourteenth Amendment but we do say full and equally enjoined it said and obviously we are relying on the Fourteenth Amendment.

Earl Warren:

We’re starting on a new (Voice Overlap).

Mr. Solicitor General you may continue your argument.

Thurgood Marshall:

Chief Justice, may it please the Court.

I would like to make it clear at this point that we would prefer that the Court consider all of the rights as we have set them out in the indictment because this is merely the indictment stage and when it gets back assuming that it goes back to the District Court, problems not only of proof but wait what goes to the jury and what doesn’t go to the jury will of course be taken up by the trial court.

At this stage we are at loss as to know just what evidence will come in or what the evidence will show.

But the indictment alleges a conspiracy forcibly to prevent Negroes because of their race from enjoying equally with their civil rights including among others the benefit of the public facilities, streets and highways.

And there is no question that the rights here are asserted are rights protected by the Fourteenth Amendment.

Thurgood Marshall:

In the briefs we spell out all of the areas on page 11 of our brief.

I mentioned before this right is grounded in the Equal Protection Clause but the District Court held that Section 241 did not encompass Fourteenth Amendment Rights at all.

So once again, we come back to Mr. Justice Douglas’ opinion in the Williams Case which recognized the specific rights secured by the Fourteenth and mid — Fifteenth Amendments as being rights within the scope for Section 241.

With that in mind, we have argued in the Price Case due process rights were also included.

No one has suggested a satisfactory basis for excluding Equal Protection Rights while still keeping due process rights, either should be a right of privilege secured by the Constitution which is using the like of Section 241.

Section 241 when applied the voting cases.

There’s no question that it was a clearly covered conspiracies by private individuals as well.

We convinced that the same applied to Fourteenth Amendment Rights.

And getting back to Senator Pool, he pointed out that individuals may prevent the exercise of the Right of Suffrage, individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the Fourteenth Amendment as well as trespass et cetera.

Our argument proceeds in three direct stages.

First, we take the position that federal powered plainly extends to dealing with those who intentionally obstruct Federal Officials in performing a duty which is imposed on them by law and I’m of course referring to the Logan Case.

There, the Court sustained the conviction under the predecessors of Section 241 of the leader the mob who attacked and killed the prisoner who of course was in the custody of the United States Marshall.

Grounds of the decision whether the United States and the Marshall had a duty under the Constitution and laws of the United States to protect the prisoners in their custody, and therefore, the Congress had the power to punish those private citizens who interfered with that.

Our second point is that the same rule applies to those who obstruct state officials and the government — or in the performance of their duty which was also imposed by the government — Constitution namely the Fourteenth Amendment.

And the duty of the state to make the same public facilities open to all races without discrimination imposed by the Equal Protection Clause and it is a federal duty and the power to enforce that federal duty surely extends as in the Logan Case the sweeping away all obstructions to its performance intentionally raised by private persons.

The basic point is therefore rather simple.

Just as there is constitutional power to punish aggression against federal officers and of preventing their performance of their federal duties, so may the Congress punish private interference designed to impede or frustrate state officials in the performance of their federal duties which came about under the Equal Protection Clause of the Fourteenth Amendment.

And thirdly, we urge that the United States has the same power to deal with private conspiracies intended to defeat enjoyment of the federal constitutional right as it has to reach conspiracies aimed at thwarting the State’s performance of its federal constitutional duties.

One must be certain of course that the private conduct is specifically aimed at the employment of the federal right to Equal Protection at the hands of the state or to purpose its private racial discrimination, no federal right in duty in the absence of statute is involved.

Here the heart of conspiracy is alleged to be barring Negroes from enjoying that equal access to public facilities which the Equal Protection Clause requires and the States was apparently ready to to afford, almost already affording.

Under these circumstances, there is no significant difference between frustrating the performance of their federal duty and barring enjoyment of the correlative federal right.

United States against Wardell is squarely in point.

In that case, the man was trying to perfect his right on homestead land and he was interfered with by private individuals.

Now as I mentioned before the Logan Case is in the same category.

Interference with the reciprocal relationship by coercion or provider would be punished.

The argument runs but not interference by cohesion of the beneficiary.

The fallacy is that federal interest is in the provision and the enjoyment of the state facilities.

That’s the federal interest.

The practical objective of the constitutional guarantee is that Negroes shall receive the equal opportunity for the use of facilities that the state provides.

The reciprocal relation between a federal duty to furnish protection and a federal right to enjoy the protection owed was pointed out by this Court in the Logan Case where it was said “The existence of that duty on the part of the government necessarily implies a corresponding right on the part of the prisoner to be so protective.”

Thurgood Marshall:

And this right of the prisoner is a right secured to them by the constitutional laws of the United States.

So here, there is a federal right which defendants conspired to take away from Georgia Negroes, specifically the right to enjoy the public facilities furnished to them without discrimination.

We recognize of course that most of the cited cases involving third party interference was the relationship between the United States and the persons injured, such as the petition for interest of grievances, filling government contracts and mostly upon public lands whereas the present case superficially considered seems merely to involve third party interference with relationship between the persons injured in the States.

But in fact however, the relationship between the State and the Negroes which the defendants sought to intimidate, the relationship with the defendants intended to shatter is itself created by the federal constitution.

Thus, the interference with the victims’ enjoyment of this right given to them by the federal government is interference with the relationship between the victims and the federal government as well as the relationship between the victims in the states.

Since the Right to Equal Protection of the laws includes the right to have a state furnished equal access to public facilities that right too is a privilege in the immunity of citizens of the United States.

Defendants are plainly charged with a conspiracy to interfere with the Negroes’ exercise of these rights of equal access to public facilities and therefore, are charged with attempting to deprive them over their privilege of a citizen.

The power of the Congress to punish conspiracies to deprive one of their privilege or immunity of a citizen of the United States is beyond dispute and on that point even the Cruikshank case recognized that.

There is no inconsistency between our submission and the doctrine of the Fourteenth Amendment being concerned only with governmental action does not enlarge the right of private citizens among themselves.

Here, the indictment alleges explicitly and specifically that the object of the conspiracy was to prevent Negroes from enjoying the opportunity for the equal use of the property and the state had offered it to them.

That specific intent is the critical element in this case.

The word absent, the wrong might well be only an instance of private aggression beyond federal power, unless the state were shown to be withholding from the victims, the Equal Protection of the laws which is not this case.

The intent however, the defendants’ acts are linked to the state’s constitutional obligation and become interference with their relationship created and safeguarded by the United States.

That’s not pure theory in simple practical terms.

The defendant’s alleged aim was to bar desegregation of state facilities as required with the Fourteenth Amendment.

And particularly, we like to put aside because of the lack of a specific intent all instances of violence resulting from private cause.

If all that appeared was that A, B and C conspired to threaten and rob, or killed for personal gain or revenge, the state alone could have jurisdiction regardless of D’s race or color.

That D was a Negro incidentally lost the opportunity to use a state facility would be no more relative than the victim of another murder lost the opportunity to obtain a government contract of take a homestead.

Nor would a general showing of racial antagonism sufficed if the state we’re willing and able to extend to all races impartially the equal protection of its laws.

Here, the conspiracy is alleged to have been specifically aimed at barring the realization of the right to equal use of facilities offered by the State.

It is that specific intent to bar their enjoyment of a constitutional right against a state upon which rests the federal power in the present case.

A different case will also be presented if the objective of the conspiracy would interfere with speech, association or assembly.

Although, we may well wish to argue upon a later occasion that the federal government may protect men against private violence aimed at suppressing speech, association or political activity for present purposes, we may assume that even in such a case the federal government could not constitutionally interfere if the state were supplying equal protection.

In such case, there’s no relationship between the state and the victims beyond the obligation to provide them with the same protection as other citizens.

Abe Fortas:

Well, general, excuse me a bit.

Thurgood Marshall:

Yes Mr. Justice Fortas?

Abe Fortas:

It seems to me in your argument that you are ignoring paragraph 4 in the indictment and with it – and I wonder if you’re doing that deliberately that is to say very, very poorly indictment excuses the defendants were conspiracy to deprive these persons of the right to travel to and from the state of Georgia and the use of highway facilities and other instrumentalities of interstate commerce.

And I think I’ve asked something along these lines before but your argument bewilders me is respect that I don’t know just where in your scheme of reasoning about the statute that particular paragraph fits.

Thurgood Marshall:

In the reasoning of whether I’m not talking about, I’m talking about one and two.

I’m not at four and whereas I — we obviously would not be able to cover all in the oral argument.

Thurgood Marshall:

I will get to it, but it — I want to specifically get the government’s position clear.

We take the position that each one of the rights here set out stands on an equal footing and we are not abandoning anyone of it.

But the Equal Protection Clause because of some of the earlier cases is the more difficult one to — at least we thought to get over and that’s why I’ve been concentrating on that one.

Abe Fortas:

Well, are you — did I incorrectly understand you?

I thought you were, in effect abandoning paragraph 5?

Thurgood Marshall:

We do abandon paragraph 5 because we take the position that it doesn’t add anything and we don’t need it, but we have not at all abandoning the argument but I understood when I answered the question this morning that as we set out in our brief we are relying on the Crandall Case and the Crandall case alone would be sufficient, but I don’t know what would happen if the decision were adverse on just the one point.

What we’re trying to do is to persuade the Court to reverse and remand, so that all of the four points can be considered by the trial court and it would be up to the trial court to decide the real difference with number 4 is what type of evidence would be produced, I don’t know.

Abe Fortas:

On paragraphs 1, 2 and 3 of the indictment, is it your position that these are state rights within the language of Section 241, they are secured by the federal constitution.

Thurgood Marshall:

No sir.

Abe Fortas:

That is on your position that they are federal rights?

Thurgood Marshall:

We take the position that they are federal rights for the reason that the access to them, the state having given the Negroes access to these rights under the Fourteenth Amendment then they are protected by the federal government.

They are not state’s rights.

Abe Fortas:

I suppose the state might respond that the state has given these people access to the streets and public facilities and so on, on the basis of the state’s own constitution.

Thurgood Marshall:

Well, of course, Mr. Justice Fortas, the problem is the state is not in this case by any stretch of imagination.

Abe Fortas:

I know.

I’m just trying to get your argument whether the state is here or not.

Sure, I’m trying to find out whether in effect you’re saying that what in substance is your position with respect to the connection of these rights and the language of Section 241.

The language of Section 241 as in terms of rights of privileges secured to him, that is to say to any person by the constitutional laws of the United States.

Thurgood Marshall:

Yes sir.

Abe Fortas:

But what I — I am sure it’s my own problem here (my own problem), but what I can’t get to is your precise logic by which you relate these rights to that phrase in the statute.

Thurgood Marshall:

Well, we say that the right to use of public facilities in vicinity of Athens et cetera are rights which are secured to the victims in this case, the Negroes by reason of the Fourteenth Amendment not by the reason of the state.

Now that’s our allegation.

Abe Fortas:

The rights granted by the Fourteenth Amendment —

Thurgood Marshall:

Guaranteed.

Abe Fortas:

But that — they come within the phrase secured to him by the constitution or the laws of the United States.

Thurgood Marshall:

Yes, sir, guaranteed.

Abe Fortas:

And the reason of the fact that they are rights guaranteed by the federal constitution.

Thurgood Marshall:

By Article 1 —

Abe Fortas:

And your position is that since these rights are guaranteed by the Fourteenth Amendment despite — whether or not they are regarded as rights conferred by the state that they come within the language of Section 241.

Thurgood Marshall:

That’s our position.

Thurgood Marshall:

Right.

William J. Brennan, Jr.:

Well, Mr. Solicitor Gentleman, may I ask if supplementing that, I heard you I think say that right to access the facilities at the school —

Thurgood Marshall:

Yes, sir.

William J. Brennan, Jr.:

– is a privilege and immunity, did I hear you say that?

Thurgood Marshall:

I didn’t say schools.

I’d said privilege and immunity in general phrase.

I don’t — if I did, I didn’t mean to say it.

William J. Brennan, Jr.:

Well, perhaps I misunderstood you.

Well, let me put it this way.

These rights guaranteed whatever they may encompass by the Fourteenth Amendment, are you suggesting that they come in the category like the right to travel under Crandall and Nevada protected by, not the Fourteenth Amendment, but Section 2 of Article 4, “the citizens of each state shall be entitled the a whole privileges and immunities of citizens in the sovereign states.”

Thurgood Marshall:

No sir.

William J. Brennan, Jr.:

— in that argument?

Thurgood Marshall:

I’m arguing the Fourteenth Amendment?

William J. Brennan, Jr.:

Alright, and you’re arguing — but you are arguing is paragraph 3, aren’t you on Crandall, or 4 rather?

Thurgood Marshall:

Yes, sir.

Four, it’s on 4.

William J. Brennan, Jr.:

Crandall and Nevada.

Thurgood Marshall:

That’s Crandall and Nevada.

William J. Brennan, Jr.:

Well, am I wrong, I haven’t read it sometime.

Thurgood Marshall:

We take —

William J. Brennan, Jr.:

Didn’t that rest on Article 4, Section 2?

Thurgood Marshall:

It specifically went to the Commerce Act as I remember.

It was very general.

William J. Brennan, Jr.:

Oh, on the commerce book?

Thurgood Marshall:

Yes, sir, under the commerce clause, but it’s our position that the Fourteenth Amendment —

William J. Brennan, Jr.:

Well, am I wrong?

I just — I thought Crandall had also dealt with this right of travel.

Thurgood Marshall:

It was —

William J. Brennan, Jr.:

In fact, that was tax wasn’t it against passengers on a train or what?

Thurgood Marshall:

That’s right.

William J. Brennan, Jr.:

I thought that —

Thurgood Marshall:

That’s right, that’s right.

William J. Brennan, Jr.:

It didn’t say it implicate Article 4, Section 2?

Thurgood Marshall:

We go right here at the —

William J. Brennan, Jr.:

Well, don’t waste your time on it and I hope – in any event even if whether they did or not, you’re not making that argument as regard to the general rights secured by the Fourteenth Amendment, is that it?

Thurgood Marshall:

No, sir.

We take the position — well, to put it in other way, we take the position that the Fourteenth Amendment rights are just as important as any of the others, but that when you realize that this particular congressional act was passed pursuant to Section 5 of the Fourteenth, obviously they meant to protect Fourteenth —

William J. Brennan, Jr.:

Well, what that —

Thurgood Marshall:

But they also protect the others in —

William J. Brennan, Jr.:

Well, what got me off the track was I think you said something about privileges and immunity.

Thurgood Marshall:

I was talking about the Fourteenth Amendment process here.

Hugo L. Black:

I don’t quite understand what you’re saying about four.

Four it seems to me could rest over the charge, it seems to rest on the charge in filing them or the right to use the streets, highway facilities which the interstate commerce protects.

Thurgood Marshall:

That’s right.

Hugo L. Black:

Well, why would the Fourteenth Amendment be as what you said?

There are many, many laws that a part of individuals is necessary to protect the interstate commerce beginning with [Inaudible] case, or the White Slave case, stolen automobile case, why does the Fourteenth Amendment have to be invoked there?

Thurgood Marshall:

I don’t — I didn’t — I hope I didn’t mean to invoke the Fourteenth Amendment on that.

We say that – the only reason I mentioned Fourteenth Amendment is because 241 was passed pursuant to the Fourteenth Amendment.

Hugo L. Black:

That was — 1 and 2, are those rights protected by any — by the reason of Civil Rights Act?

Thurgood Marshall:

We say that some of them are.

Hugo L. Black:

But so far as that’s concerned then if they are protected by —

Thurgood Marshall:

Only one.

Hugo L. Black:

Only one?

Thurgood Marshall:

Yes sir, only one.

That’s the restaurants et cetera, but not the schools.

Hugo L. Black:

Oh, is that you concern then, what you would be saying is they have conspired to deprive them a right guaranteed by that Section.

You wouldn’t have to go to the Fourteenth Amendment there, would you?

Thurgood Marshall:

No, sir.

We wouldn’t have to.

Hugo L. Black:

That’s been so far as the power of congress debates —

Thurgood Marshall:

The power of Congress, well, that as I understand that the beginning of the statute puts in several provision including them.

But I don’t need that the 2 — for 2 and 3.

We are relying mainly —

Hugo L. Black:

That’s the Equal Protection, isn’t it?

Thurgood Marshall:

Absolutely.

Hugo L. Black:

What you’re saying there is that they’ve deprived them of the right which the Equal Protection Clause of the Fourteenth Amendment —

Thurgood Marshall:

Which is guaranteed —

Hugo L. Black:

— as against in the operation and the application of state law.

Thurgood Marshall:

That’s exactly it and that the reason they do have that right is because of the Fourteenth Amendment and that this conspiracy had aimed at preventing them from exercising this federal right which they have.

Hugo L. Black:

Not to be discriminated against on account of their color?

Thurgood Marshall:

Right, yes, sir.

Getting back to the lynching one, I’d like to call the Court’s attention to Harris, US against Harris in which government alleged that’s clearly distinguishable upon the facts for two reasons.

First, it was an allegation of racial motivation which could draw the equal protection in play and second, there was no allegation of intent to deprive party of any constitutional right.

Indeed there’s a lot of distinction between lynching is even when racially motivated and the present case.

While the lynch mob knows that it is preventing the state from according to victim due process of law, but they may not intend to interfere with the constitutional right.

But in the present case, the court according to the indictment bind the desegregation of state own facilities was a sign of the conspiracy.

And apparently, the murder of the deceased was simply a means to that end.

Whether this is an important distinction may be left as a future and to a very least it emphasized the word narrow holding which is all that the government asks in the present case.

We then face the charge that 241 if it is to reach private conspiracies directed against the Fourteenth Amendment rights would fall for vagueness.

And I hope that these decisions and the opinions of this Court in Screws and the Williams case had settled that, but the decision in the Screws case set forth two requirements for criminal provision generally enforcing the Due Process or Equal Protection Clause of the Fourteenth Amendment.

Hugo L. Black:

Was that — now wait a minute, is that correct?

I thought the vagueness came from the use of the Due Process Clause not the use of the Equal Protection Clause.

Thurgood Marshall:

Due process — but Equal Protection was mentioned.

Hugo L. Black:

Both of it was mentioned.

Thurgood Marshall:

Yes, sir.

Hugo L. Black:

What was mentioned as being vague?

Thurgood Marshall:

Was the due process, in fact, there was a criminal charge and that he might not know the particular police officer would be saying, I guess.

Hugo L. Black:

He couldn’t know just what would be encompassed in the word due process —

Thurgood Marshall:

Right.

Hugo L. Black:

— which have been given such a broad definition if there’s too vague to arrest him and prosecution for it.

Thurgood Marshall:

I was getting to — was that, it was two points.

That it will only operate against an offender acting with a specific intent to infringe the right and two, that right protected had been made definite by some decisions or other rule of law.

Those were the two that Screws set forth as I read it.

Hugo L. Black:

And the due process right.

Thurgood Marshall:

Yes, that’s all.

That’s an order for it to be a due process in order for it to fulfill the due process requirements, it has to do that.

And in the Williams case, the opinion by Mr. Justice Douglas that pointed out the 241 meets the first requirement by virtue of being a conspiracy statute.

The provision does not punish merely because someone was causing or permitting in an injurious result by negligence or otherwise, but only — you get conspiracy only if there’s a purposeful agreement to inflict the injury.

Vagueness is not imparted because the statute reaches private conspiracies else it could never serve its most traditional function as for example, the Wardell case and the Logan Case.

Whether against conspiracies to obstruct the enjoyment of a “Right or privilege secured by the Fourteenth Amendment or any other rights secured by any other provision of the constitution, 241 reaches only direct purposeful interference with the exercise or enjoyment of the right.”

The true scope of 241 is illustrated by the present indictment which alleges a conspiracy of violence and terror explicitly designed to prevent or deter Negroes on the kind of race-alone from enjoying the benefit of public facilities owned or operated by the state.

Properly confined by appropriate instructions against convictions for a code of conduct remotely related to the right charged, there would be no vagueness charges.

Section 241 as we construe it does punish every crime against the local peace, know whether a compa — comparable several provision.

The other points if I may covered in the brief and I’d like to save a little time for rebuttal.

Earl Warren:

You may.

Mr. Bloch.

Charles J. Bloch:

Yes, Your Honors please.

In the Court below there was an indictment was brought against six defendants, all of whom are here as appellees, Guest and five others.

Among the five was the defendant Lackey, I have the honor to be appointed by the Court to represent James Spergeon Lackey, one of the appellees and I appear here for him alone.

Although there is no conflict of interest as I see it the present stage of the case then raises between the other five who are represented by Mr. Hudson and Mr. Lackey whom I represent by appointment.

In the jurisdictional statement which was filed in March 1965 by Solicitor General Cox, the first of the questions presented is thus stated whether Section 241 of the Criminal Code reaches unofficial conspiracies against the exercise of rights secured by the Fourteenth Amendment.

In the brief of the government filed by Solicitor General Marshall in September of 1965, the first of the questions presented is thus stated whether Section 241 of the Criminal Code reaches private conspiracies against the exercise of rights secured by an Equal Protection Clause of the Fourteenth Amendment.

Now regardless of the slight change in the wording, the essence of the question under the first part is this.

Does Section 241 reach conspiracies against the exercise of rights secured by the Equal Protection Clause of the Fourteenth Amendment and specifically, does it do it when no state action whatsoever is involved?

Now the other two questions, the jurisdictional statement filed by Solicitor General Cox, page 3 that which is now become question 3 in the brief before the Court is whether Section 241 reaches unofficial conspiracies against the exercise of rights secured by Title II of the Civil Rights Act of 1964 relating to places of public accommodation.

The other question is stated to be whether Section 241 reaches unofficial conspiracies against the exercise of the right to freely enter and leave the state, and the right to freely use instrumentalities of interstate commerce.

Under the plan of argument that Mr. Hudson and I had agreed upon.

I was to argue the first question leaving the last two to him, but before commencing the argument of the first question, I have this suggestion to make which was I hope fully covered in the brief of which I submitted some weeks ago and which I have not heard answer either by a brief or by oral argument and that is the question of the vice of vagueness of which it occurs to me pervades this statute.

We take the position that that vice of vagueness pervades Title XVIII, Section 241 even when standing alone because as it’s been demonstrated by the numbers of cases which had been before this Court on the question and the number of cases which had been before the inferior federal courts, the question of what is a right secured by the laws of the United States or the Constitution of the United States is right wide open question.

Now, that vice even as it pertains to the statute standing alone is intensified all of the law.

Charles J. Bloch:

When the government contends that as here as I understand it that Title XVII, Section 241, passed back in 1870 I believe, is now since 1964 supplemented by the Civil Rights Act of 1964.

So that I suggest to the Court that the — that vice of vagueness has been nowhere better described than in the brief filed by the Solicitor General of the United States.

In this Court the Solicitor General who immediately preceded the present Solicitor General in a comparatively recent case lead up to it by calling to the Court’s attention to Lanzetta et al, versus State of New Jersey, 306 U. S., page 451.

It was there held if on it’s face a challenged provision is repugnant to the Due Process Clause, specifications of details of the offense intended to be charged would not serve to have validated.

Compare United States versus Reese, 94 U.S. 214, 221.

It is the statute not the accusation under it that prescribes a room to govern and warn against transgressions.

Citing Stromberg versus California 283 U. S. and Lovell versus Griffin 303 U. S. 444, no one maybe required at peril of life, liberty or property to speculate as to the meaning of penal statutes or entitled to be informed as to what the State commends or forbids.

The applicable rules is stated in Connally versus General Construction Company, 269 U. S. 385, 391 that the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to the penalties is a well recognized requirement constant alight with ordinary notions of fair play and the settled rules of law and the statute in which — and the statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess it’s meaning and differ as to it’s application violates the first essential of due process law.

Now, recently that the Court —

Potter Stewart:

You’re reading from a brief filed by the Solicitor General?

Charles J. Bloch:

No sir.

I was reading there from the opinion in Lanzetta versus New Jersey.

I now come to the brief filed by —

Potter Stewart:

I see.

Charles J. Bloch:

— Solicitor General Cox.

Potter Stewart:

Thank you.

Charles J. Bloch:

Recently, in 1964 this Court has decided the cases of Griffin, Barr, Bouie, Bell and Robinson, all in the 378 U. S.

The United States as amicus curiae filed briefs entitled in all of these cases in September 1963.

It was submitted by the Honorable Archibald Cox, Solicitor General, Greg Marshall, Assistant Attorney General, Ralph S. Spritzer, and Louis F. Clairborne, assistants to the Attorney General and Harold S. Greene and Howard A Glickston, attorneys.

At pages 26 and 27 of that briefs they wrote, the general rule is plain.

Before a man can be punished, his case must be plainly within the state — it would be in the statute.

The vague criminal statute violates the first essential of due process.

It is like the ancient laws of Caligula, a prep for the innocent citing United States versus Cardiff 344 U. S. 174, 176 which I believe was written for the Court by Mr. Justice Douglas.

The duty of warning before punishing applied equally to the States.

The Fourteenth Amendment imposes upon a state an obligation to frame it’s criminal statutes so that those to whom they are addressed may know what standard of conduct is intended to be required citing cases.

Now the Cardiff cases uses this specific language the vice of vagueness in the criminal statute is the treachery they conceal either in determining what persons are included or what acts are prohibited.

Words which are vague and fluid compare the United States versus Colin Grocery Company, maybe as much of a crap to the innocent as the ancient laws of Caligula and there’s a quotation in that brief, and I would take time to read all of it here, it appears at page 6 of the brief which I filed for Lackey back in September, at page 35 is a quotation from Professor Freud.

“The objection to vagueness is twofold.

Inadequate guidance to the individual who’s conduct is regulated, an inadequate guidance to the triers of fact.

The former objection could not be cured retrospectively by ruling either of the trial court or the appellate court although it might be cured in the future by authority’s judicial clause.”

Charles J. Bloch:

I leave that for application I hope by the Court, most particularly when you come to listen to the argument with respect to the second and third questions presented by the Solicitor General in his brief because as one of the justices in the question pointed out those questions are his inception or the conception of the drafts of the indictment of what the Civil Rights Act of 1964 prescribes.

As I read the Civil Rights Act of 1964, the prescriptions of it, the compulsions of it are quite different from what was stated in questions 2 and 3, but that simply illustrates the question of vagueness.

So that I’d come back to the question which was assigned to me and that is what is meant by the rights secured by the Equal Protection Clause of the Fourteenth Amendment.

It appears to me that the answer can only be the right of any person within the jurisdiction of the state not to be deprived by that State to the equal protection of the laws.

Now that’s where the word private and the word unofficial in the statement of question is made by the Solicitor General, but becomes so important because as I understand the position of the government is this that just leaving out 2 and 3 for the moment that he takes the – takes the categorical position that in the case like this that the private persons — private persons maybe the state in depriving another persons of the equal protection of the law and in the case that preceded this I had the opportunity to hear the argument in the case that preceded this and in this case too.

He hinted that the language that these occur — both on the language of Senator Pool of North Carolina, I believe he’d said it was, what Senator Pool of North Carolina back in 1860 — 1869 intended the Equal Protection Clause to mean or thought it meant.

And I submit to the Court that if this were the case of first impression, I don’t know what importance the Court would attach to the remarks of Senator Pool.

Suffice it to say that whatever cozette they may have had, that cozettcy has been completely wiped out by repeated decisions of this Court beginning in 1875, seven years after the ratification of the Fourteenth Amendment.

Further that unbroken line of decisions commences with United States versus Cruikshank to which illusion was made before noon, 92 U. S. 542 written by Chief Justice Waite.

He was a native of Ohio in 1875 and it continues down to the very latest decisions of this Court.

Now in that opinion handed down just seven years after the ratification of the Fourteenth Amendment, Chief Justice Waite reigned a Court consisting of himself and I call attention to the residences of these — of the justices who composed the Court at that time because that wasn’t just a decade after the end of the war between states and they were men from states, not in the south, not in Mississippi or Georgia or Alabama and men who presumably knew what the Congress of the United Stated did in 1868 when it submitted the Fourteenth Amendment to the States.

There were associate justices, Clifford of Maine, Hunt of of New York, Strong of Pennsylvania, Bradley of New Jersey, Swayne of Ohio, Davis of Illinois, Miller of Iowa, and Field of California.

The only one of the Justices who dissented was Justice Clifford and strange to say that Justice Clifford was the only one of the nine who had not been appointed by either President Grant or President Lincoln.

This is important I think I’m not just as gossip at all because it illustrates contemporaneous construction of an amendment proposed to the States by a defendant and the construction given by the men of judges, justices and the Chief Justice of various diversified locations and here’s what they wrote.

“The Fourteenth Amendment prohibits a state from denying to any person within his jurisdiction the equal protection of the laws but this provision does not add anything to the rights which one citizen has under the constitution against another.

The equality of the rights of citizens is a principle of Republicanism.

Every Republican government is in duty bound to protect all its citizens in the enjoyment of this principle if within its power.

That duty was originally assumed by the States and it still remains there.

The only obligation resting upon the United States is to see that the States do not deny that right.

This the Amendment guarantees but no more.

The power of the national government is limited through the enforcement of this guarantee.”

And yet it is suggested in the briefs and it is suggested in oral argument before the Court that the — this Section of the amendment which provides for appropriate legislation may go beyond that vague sentence.

It speaks of the first part of it being self executed but what it is, is what it is and it is a limitation on the power of Congress, under the — without the Fourteenth Amendment of course no legislation of this sort could have been passed.

The Fourteenth Amendment was adopted for the purpose of giving the federal government sacred powers, but that power of the national government is limited to enforcement of that guarantee.

What guarantee?

The obligation resting upon the United States to see that the States do not deny equal protection of the laws to any person within its jurisdiction.

Now, there was a birth of the doctrine of state action.

Four years later it was reiterated in the Virginia versus Rives, 100 U. S. page 313.

I call your attention, if you please, to the language of the Court at page 318 of the Rives case.

The provisions of the Fourteenth Amendment of the Constitution we have quoted all have reference to state action exclusively and not to any action of private individuals, any action of private individuals.

Charles J. Bloch:

And in the Rives case decided practically, contemporaneously with the Cruikshank case 92 U. S. at page 214 in 1875, the third and fourth Sections of the Act of May 31, 1870 which I think of the — is the source of law, this section here, it was the sixth section I believe, not being confined in their operation to unlawful discrimination on the count of race, color or previous condition of servitude, are beyond the limits of the Fifteenth Amendment and unauthorized.

Now, that is important although it deals with the Fifteenth Amendment, because the Fifteenth Amendment contains the very same appropriate legislation clause.

Of course, I recall as I’m sure Your Honors do that United States versus Rives was applied by Judge Hoyt Davis in the Rives Case in the middle district of Georgia some years ago and this Court reversed the Rives case which I believe appears in 362 U. S., but distinguished the Rives case.

It didn’t add pieces at all, it’s still the law of the land, that down through the four score and ten years which haven’t left since 1875, there have been many Congresses, many Justices of this Court to come and go, many attorneys general, many solicitors general, many constitutional amendments, but the principle remains primarily embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States.

That amendment erects no shield against merely a private conduct however discriminatory or wrong.

So wrote Chief Justice Vincent in 1948 in Shelley versus Kraemer and two of the Justices who joined in that decision are watching the list, still members of this Court.

Ten years later, ten years after Shelley versus Kraemer, on September 29, 1958 in the Middle Rock crisis at the August 1958 special term of this Court in Cooper versus Aaron, 358 U. S. page 1, the Court said, “The controlling legal principles are plain.

The command of the Fourteenth Amendment is that no state shall deny to any person within his jurisdiction the equal protection of the laws.

The State acts by its legislative, its executive, or its judicial authorities, it can act in no other way,” that pages 16 and 17, Cooper versus Aaron, quoting from ex parte Virginia decided in 1879, 100 U. S. at page 347.

I recognize of course that the concept of what is or is not state action may have varied since 1875.

Take for example Lombard versus Louisiana or Peterson versus Greenville, 373 U. S. 244, but the fundamental principle remains firmly embedded and as late as 1963 was succinctly stated in Peterson versus Greenville.

In deciding these cases, the Court does not question the long established rule that the Fourteenth Amendment reaches only state action.

Antecedent to that the government says in its brief, page 23, the text of the Equal Protection Clause read in conjunction with the fifth section of the Fourteenth Amendment authorizes legislation reaching private conspiracy.

Now that Section is this, quoted exactly, “the Congress shall have the power to enforce by appropriate legislation the provisions of this article.”

Now in this lengthy discussion of that thesis the government at page 29 of its brief says, ‘In short, the Equal Protection Clause states the nature of the right guaranteed protected equality and defines the area of constitutional concern state activities.

The rest it would seem is left to Congress empowered by Section 5 of the Amendment to enforce the guarantee by appropriate legislation, the risk.

Now, I ask what risk?

There isn’t anything left invisible because the Fourteenth Amendment applies only to state action.

Further the government says at pages 50 and 51 after alluding to the old Harris case, I have refereed to the old Harris case in 106 U. S. that’s contrasted with a more recent one of the same name to which illusion is made in the brief.

But in the old Harris case written by Justice Woods is this.

“So far as we are aware there are no more recent cases in this Court that bound the question,” this is a government copy, “To be sure it has been reiterated that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States,” compare Shelly versus Kraemer, “But such statements may fairly be read as defining only the self executing force of the Amendment only did by implementing legislation.”

Now that last sentence is directly conferred to the express holding in the Harris case.

There in 1882 in holding Section 5519 of the Ohio statute unconstitutional, the Court has to say it in Cruikshank, and in Virginia versus Rives said this.

“This authority show conclusively that the legislation under consideration finds no warrant for it’s enactment in the Fourteenth Amendment.

The language of the Amendment does not leave this subject in doubt.

When the State has been guilty of no violation to this provision, when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States, when no one of it’s departments has deprived any person of life, liberty or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws.

When on the contrary the laws of the State as enacted by the legislative and construed by its judicial and administered by its executive departments recognized and protected the rights of all persons.

The amendment imposes no duty and confers no power upon Congress.

Now that case is cited by his Honor, Mr. Justice Black in his dissent in Bell versus Maryland recently wherein the dissent said and there was nothing in the main opinion that contradicts the argument, that’s opposed to the argument that I make here with respect to it.

But it so succinctly stated, “no state shall 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 law.

Charles J. Bloch:

This section of the Amendment unlike other sections is a prohibition against certain conduct only when done by a state, state action as it is come to be known and erects no shield against merely private conduct however discriminatory or wrongful.

This well established interpretation of Section 1 of the amendment which all the parties here including the petitioners under Solicitor General accept means that this section of the amendment does not in itself standing alone in the absence of some cooperating state action or compulsion forbid property holders including restaurant owners to ban people from entering or remaining upon their premises.

Even if the owners act out of racial prejudice, but the prohibitions to the amendment extend to all actions of the state denying equal protection of the laws whether by its legislative, executive or judicial authorities.

The amendment thus forbids all kinds of state action, by all state agents and officers that discriminate against presence on the account of their race.

It was this kind of state action that was held invalid in the City of Greenland, in Lombard, in Griffin versus School Board, and in Robinson versus Florida.

Hugo L. Black:

What page is that you’re reading from Mr. Bloch in Bell versus Maryland?

Charles J. Bloch:

Your Honor, it’s in your dissent and I don’t know, I’ve got 370 U. S. 326.

I don’t know whether that quotation is — at that point or whether the case begins at 326.

Hugo L. Black:

Was there any footnote cited to that?

Charles J. Bloch:

Sir?

Hugo L. Black:

Was there any footnote cited to that, you recall?

Charles J. Bloch:

I don’t recall, but let me see, I may have it here.

It was cited here at 378 U. S. 226.

Hugo L. Black:

I thought you read the sentence, did you not, that section of the amendment called upon like other sections is a prohibition against certain conduct only when done by the state?

Charles J. Bloch:

Yes sir.

Hugo L. Black:

There was a footnote that I thought there was and I just found it.

Charles J. Bloch:

This section is the amendment unlike other sections is the way I read, is a prohibition against certain conduct and only when done by a state that unlike wrong —

Hugo L. Black:

— unlike other sections and the quote Section 5 in note 11, the Congress shall have power to enforce by appropriate legislation the provisions of this article.

Charles J. Bloch:

Did that — is the unlike wrong here?

Hugo L. Black:

Yes, it’s unlikely.

Charles J. Bloch:

It should be like – How does it read?

Hugo L. Black:

The Congress — or unlike other sections and then the note says Section 5, it says if the first section of the amendment applies only to states and state action unlike other sections and that in the footnote.

Charles J. Bloch:

But this is where we have it.

In this section of the amendment unlike other sections is prohibition against certain conduct only when done by a state.

Hugo L. Black:

Yes, and — on the other section — it was in the other section referred to with Section 5 or whatever it was.

Charles J. Bloch:

I understood the other sections to refer the first four sections of the amendment.

Hugo L. Black:

Well, it’s — the note says that Section 5 — Section 5 is the one that gives the Congress the power to enforce by appropriate legislation.

Charles J. Bloch:

Like I mean, Section 5 the appropriate legislation section.

Section 5 is the appropriate legislation Section, isn’t it?

Hugo L. Black:

Yes but —

Charles J. Bloch:

It turned like the other section it applies only to the state action.

Hugo L. Black:

In other words what I was pointing out was for whatever maybe it worth, what you read did not say as I read it that Section 5 applied only to the State, state action.

Charles J. Bloch:

As I read it — what you —

I think the opinion as I remember it, because I joined it —

Charles J. Bloch:

Sir?

I said, I think the opinion as I remember it because I joined it specifically left open the question, specifically left open in the question that you’re raising here as to whether the Congress could legislate beyond the field of state action under Section 5.

I think I’m correct in my recollection.

Charles J. Bloch:

But it did — the majority held there I think that there was state action.

That they weren’t — (Voice Overlap)

Charles J. Bloch:

I understood the — that’s the way I understood the — this act mean that the question of whether the Congress could legislate despite the line of cases beginning back in 18 — it was left open.

Hugo L. Black:

Whether Section 5 defines state action just as my Brother Harlan said left open — (Voice Overlap)

Charles J. Bloch:

And that’s what I want there because I was trying to show that while it was left open, leaving all of that, while it was left open that it ought to be closed because of the unbroken line of authorities (Voice Overlap).

William O. Douglas:

It wasn’t — it wasn’t left open by everyone, was it?

Charles J. Bloch:

Sir?

William O. Douglas:

It wasn’t left open behind everyone.

Charles J. Bloch:

Pardon me, it’s left open —

William O. Douglas:

What you’re talking about, it wasn’t left open by everyone of us, was it?

Charles J. Bloch:

As I understood it — it was (Voice Overlap) perhaps was the government to got this idea that the (Laughter) that their might be something left in that legible besides of what the Court has decided from 1870 down to — that’s what I was driving at.

William O. Douglas:

At least that’s you hope.

I may put a hypothetical to you just to emphasizing that — hypothetical just to see if I understand your theory.

Supposing the Congress passed a new statute. —

Charles J. Bloch:

Would you mind —

Supposing to Congress passed the new Section 241 so we don’t get tangled with the history of this one and said that the if found that the conditions of a opposition in certain states to the enforcement of the racial decisions were so great that the States were not being — the states were being prevented for fulfilling their obligation to enforce their duty under the Fourteenth Amendment and that therefore it became necessary for the Congress to implement the Fourteenth Amendment to reach private action of individuals to make that an indictable offense.

Under your theory would Congress have power to do that?

Charles J. Bloch:

I would say no.

The Congress did not have the power to do it and it didn’t do it.

I had the suggestion made somewhere before, maybe it was smaller than I thought about that a little bit, I would say no Mr. Justice because I see when the — it’s only the source of power to do that would be the Fourteenth Amendment that I know of except the voting rights under the Fifteenth Amendment, that when the Fourteenth Amendment says that if no state — no state shall deprive any person within it’s jurisdiction of equal protections of the law, it means just what it says and particularly when you connect it up with the decisions that say that the State can act only through it’s judicial, legislative or executive branch.

Now, what Congress would be doing then it seems to me would be to go beyond that scope of the delegation of power that putting in the Aiding Abetting Clause.

What the Congress would be doing in the sections – in the situation of that sort would be saying that no person shall aid or abet the State or prevent the State from exercising its duty under the Fourteenth Amendment.

And I — it would be the law to preventive then aiding and abetting and I don’t think it’s got that right.

Charles J. Bloch:

That is under the present Constitution.

It is only the legislative department, the executive department, or the judiciary department that can deprive a person within its jurisdiction of the equal protection of law.

So it alluded to that is what the law have outlined by referring to the cases of the Lombard case and the Peterson case goes up to that law.

But I thought that they went a little beyond what the Fourteenth Amendment provided but still they were decided, but even with those cases there, I don’t think that law would be justified.

I think that’s a good place for me to stop and leave it my associate [Inaudible].

Thank you.

Earl Warren:

Mr. Hudson?

James E. Hudson:

If the Court pleases, one part here that I think should be brought out relative to the Fourteenth Amendment right that Mr. Bloch, I thought did not cover and that is the holding in the Williams case that the government seem to be relying on so heavily.

We take the position that even the dissenting opinion in the Williams case does not put us in the category of such conspirator because the dissenting opinion, it appears to me was based upon the facts of the case and that is the dissent in the Williams case construed the facts to be that there was state action in the Williams case, that is the — Williams had taken an oath that he was a private investigator.

He had taken an oath as a special policeman of Florida City and policeman had been delegated to attend the investigation out of which this conspiracy indictment arose.

And we think even under the dissent in the Williams case that this would not make us the indictment good at us, because in our indictment there is no mention and the Solicitor General has admitted in his argument there is no vestige of state action.

We are purely private individual so even under the Williams cases we — this indictment is not good as to us.

The — it set forth that the government makes in it’s the argument here is that the — it is whether or not a conspiracy to violate the provisions of the Civil Rights Acts of 1964 amounts to a conspiracy on the 18.241.

In looking through the legislative history of the Civil Rights Acts of 1964, we hold the opinion that it was the purpose of the Congress who realized that we had a very serious problem especially in the south to pass the law that everybody could live with and stay phased with and comply with the law.

And that is borne out very, very clearly by statement by Senator Humphrey, and of course now the Vice President in which he states that Section 207 (b) of the Civil Rights Act which provides that the remedies provided by this Act shall be the exclusive means of enforcing the Act is necessary otherwise, the persons would contend that a violation of this Act could result in prosecution on the 18.241 and 242, he used the exact statement.

So it’s quite obvious from the legislative history that it was not intended that the violation of the Civil Rights Acts of 1964 be a violation under 18.241.

Is that in your brief?

James E. Hudson:

Yes sir.

That is in my brief and also I would like to point out that the Section 207 (b) provides, it said this shall be the exclusive means of enforcing the remedies and I submit to you that the word exclusive that’s used in that context is not susceptible to any other meaning.

Byron R. White:

Well, Mr. Hudson what if some of the rights were secured by the Civil Rights Act of 1964 were already protected by the Fourteenth Amendment before the Act was passed.

Let’s just assume that.

James E. Hudson:

Well, and that —

Byron R. White:

And the — and then the 1964 Act comes along and says what it does and says exclusive.

So something that would have been protectable by criminal prosecution before suddenly becomes not protectable, is that it?

James E. Hudson:

No sir.

I don’t mean that.

If that were the case and I content that it is not — but if that were the case then the indictment would have to be based upon the Fourteenth — the rights secured by the Fourteenth Amendment in that event and we’ve argued that point previously.

The other ppoint in this case that the government has been raised which is colloquy particular trouble is whether or not a conspiracy to violate a persons right to ingress and egress from a state or to use the instrumentalities of interstate commerce would be such a conspiracy as being indictable on the 18.241.

We don’t think it would be for these reasons.

First or all the rank to ingress and egress to and from a state is not mentioned in the Constitution of the United States.

James E. Hudson:

The right seems to have been under the ruling in Wheeler versus United States which is a 1920 case.

It seems to have been reserved to the States.

In the Wheeler case which was only to understand and in 1920 that it never has been overruled.

In the Wheeler case it was held that the right to travel to and from a state was not the answer to federal citizenship.

Byron R. White:

Well, in fact travel to and from Washington?

James E. Hudson:

Sir?

Travel to and from Washington?

Now that might bear something I haven’t thought about, everybody in Washington be in federal citizen and not a state citizen that could possibly make a [Inaudible] but I don’t think it would.

I think the District of Columbia as far as the political —

Byron R. White:

But do you think we can overrule Crandall [Inaudible]

James E. Hudson:

No sir.

I don’t think this — the state in versus the United States is in conflict with Crandall.

Now, and the reason I see it —

Byron R. White:

What was the Crandall right that was said to be an incidence of national citizenship?

James E. Hudson:

Well, in the Crandall versus United States, the State of Nevada had passed a tax which the taxed of certain items in the interstate commerce (Voice Overlap)

Byron R. White:

I know it does, I know it does –.

James E. Hudson:

And as I get to the ruling in the Crandall case the basis of it was that the United State have the right to regulate interstate commerce and the State could be infringed upon it.

Byron R. White:

I thought the Court said it’s expressly — it was putting it on the commerce clause?

James E. Hudson:

No sir, I don’t recall that.

William J. Brennan, Jr.:

Well, Justice Clifford dissented on the ground that it should have been put under the commerce clause as I recall.

Incidentally, one the facts, there so much discussion to that opinion of back and forth to watch it, cheat the government and so forth?

James E. Hudson:

I don’t really recall.

I know it involved the tax on the interstate which it was a –I guess on interstate commerce.

But if Your Honor, if the Court please I’m coming to this point, even admitting this not admitting but for purpose of argument say that the right to travel to and from the state is an answer that federal citizenship.

If it is, we say that even in that event that this indictment as against us would be board because of vagueness.

Now, my personal opinion is that the Congress of the United States can pass the law and not under the Fourteenth Amendment but under its right to regulate commerce and say if you kill a man to prevent his ingress or egress in — from a state or prevent him from using the instrument instead of this of the interstate commerce then that law would be valid.

I would agree to that.

However, the Congress has not seen it fit to pass such a law.

Now it may very well be that I know that there are a lot of people getting killed uselessly and something should be done about the people riding around at night and killing innocent people.

Byron R. White:

Can I ask you another question?

James E. Hudson:

Yes sir.

Byron R. White:

241 says that it makes the crime to apprehend some private person to prevent him — to I think decide that he needed his right, any right of privilege secured to him by the Constitution.

Let’s assume that law has passed one day and just the day before the — it’s been held in the Court and the final judgment that one of the rights secured by the Constitution is the right to pass to and from the state, it would have passed along the roads coming back and forth to Washington.

Is that a vague statute?

James E. Hudson:

Yes sir, because had I looked at the statute today before I killed the man, I wouldn’t have known whether or not I was committing the crime though it’s —

Byron R. White:

Well, the Court — well, he may not know, but you knew you — you then say that the Court may not put an acceptable gloss, a narrowing gloss on a vague statute.

James E. Hudson:

Not under the previous decisions of the Court I don’t think so, yes that’s correct.

Byron R. White:

So, the statute is vague, it’s vague on its face, there’s no narrow construction of this Court for example to put on the statute which thereafter would cure other vagueness?

James E. Hudson:

Yes sir, I think so.

I think if all of these decisions, Wheeler versus the US, Cruikshank and all of those Salughterhouse cases and all of those things, if those things had all held that a conspiracy to violate some of these rights were the conspiracy on the 18.241 then when I do that I’ve got all of these decisions behind me in that rule as I’m not taking this rules cases, it has been set aside and that is — that’s the rule of — that’s the right has been made definite by decisions of the law.

Byron R. White:

I then suggest to you that 241 which refers to a right of privilege under the Constitution, the Congress passed such a criminal statute, [Inaudible] the right or privilege, the next day the Supreme Court of United States say decided that one of the rights and privileges under the Constitution is this ingress and egress that — and then someone interferes with the ingress and then egress —

James E. Hudson:

Oh, I understand and in that event it would not be void for vagueness but we don’t have that situation here —

Byron R. White:

Why is then 18.241 with the extent that you say its vague cured by Crandall against Nevada.

James E. Hudson:

Because in Crandall against Nevada, nobody remotely suggested that they put the legislature in the State of Nevada, even the tax collector is in jail.

It was just a regulatory posture.

Byron R. White:

Well, I know but it said it was the right or privilege of (Inaudible) and that’s what 241 referred to.

James E. Hudson:

Well, but it didn’t overrule this other cases.

It didn’t overrule Wheeler versus Nevada, so as —

William J. Brennan, Jr.:

I know.

We were —

James E. Hudson:

I mean Wheeler versus the United States.

William J. Brennan, Jr.:

Wheeler has followed Crandall and as I thought I’ve had it before me, Crandall before me, a great emphasis here on the right of people to come to Washington has preceded the national government.

And this was the context in which it was suggesting that this was a national privilege and that was the ground to follow which Mr. Justice Clifford dissented because he thought not on that fact but rather on the Commerce Clause, within the Commerce Clause.

It would have to be found the national rights effectively.

Certainly the Court in that case and nothing Wheeler overruled that, did it?

James E. Hudson:

No sir.

Or else I don’t believe so.

William J. Brennan, Jr.:

No, where — where does that — where does that leave you at least that regards paragraph 4 — 3 and 4 of the indictment on your argument as to vagueness.

James E. Hudson:

It leaves me in the same position as the Court as I would have been held that in argument, the Screws case I believe if Your Honor please, all of these decisions have consistently held that these type rights as are alleged to be rights under the indictment were not rights which were indictable on the Fourteenth Amendment.

William J. Brennan, Jr.:

What I was trying to suggest is that just this isn’t so.

William J. Brennan, Jr.:

Crandall and Nevada is still law and there couldn’t be any question of vagueness in respect to that allegation fulfilled in the light of Crandall, One of these other cases have to do without that and whether Crandall [Inaudible]

James E. Hudson:

Well sir, as I says that that — to me is a different proposition as regulating something and trying to put somebody in jail.

It’s a different proposition all together to me.

I would take the position (Voice Overlap)

Byron R. White:

Well, I agree with you that your —

James E. Hudson:

— in Crandall.

Byron R. White:

I agree with you that [Inaudible] on that is a criminal statute, you don’t put people in jail.

But the absence of credit for the criminal statute doesn’t determine or [Inaudible] whether or not there’s a right of privilege secured for the constitution and Crandall said there was that — now, the statute — the criminal statute comes along and says that you don’t interfere with people’s right with the constitution and one of those rights seems to make you move back to its place —

James E. Hudson:

Well, if Your Honor please, I just don’t understand the Crandall that way.

Now, I would be quite frank with you.

That maybe exactly what it holds, but I didn’t mean to understand it that way and I’m not — that’s my point, the main — the last point that I would like to make to the Court here is that — that whether this mean really about this case in the implications of the crime because for this reason this Court among — has been a broad walk here for individual liberties and keeping this out of — keeping this from having a great, strong, central police force.

And was this — if the Court rules against us on this interstate commerce and the implications of it is forwarded onto the center will not be good for the country for the simple reason that it’s hardly anything that you or anybody else can do and not being an interstate commerce.

And so as the Court, does hold in this case that this estimates of interstate commerce are indictable along to 18.214 then there’s hardly any crime that should ever be committed that would not be or could not be construed to be a federal crime.

And I don’t believe that it’s god for the country and I asked you to stay in the — dismiss, thank you.

Earl Warren:

Did you have a word to say Mr. —

Charles J. Bloch:

Yes.

Earl Warren:

You may say it (Voice Overlap)

Charles J. Bloch:

I would like to call your attention of the Court to the facts that United States versus Wheeler is discussed.

I put at pages 15 and [Inaudible] and its all clear and I sought — and I say my brief, I sought there to distinguished crime and bear it in mind that Mr. Justice Douglas is thinking the Edwards case — the Edward’s case, a California case had going back to Kraemer.

Byron R. White:

And the lower court relied upon Wheeler didn’t it —

Charles J. Bloch:

Sir?

Byron R. White:

That the lower court here relied upon Wheeler?

Charles J. Bloch:

I think the lower of court have not denied it upon Wheeler in our case.

Yes, it could be — actually —

Byron R. White:

And so do you?

Charles J. Bloch:

The District Judge below apparently relied heavily on Wheeler is shown by his frequent citations of it in his opinion, in the transcript pointing it to 33.

That the Wheeler disting — distinctively distinguishes Crandall and have it relate to Edwards either revoke —

Earl Warren:

Mr. Solicitor General?

Thurgood Marshall:

Unless any questions we will waive the three or four minutes we have and submit.

Earl Warren:

Very well.

Earl Warren:

Mr. Bloch before we come to the next case on behalf of the Court I would like to express our appreciation to you for representing this indigent defendant.

We considered it a real public service for lawyers to accept assignments in this Court such as you have and we appreciate very much the effort that you have made and the presentation that you made to the Court.

And Mr. Hudson we appreciate the earnestness and vigor with which you have represented your people and of course Mr. Solicitor General we appreciate the — your representation of the government.