United States v. Guest

v. GUEST UNITED STATES et al. Argued 9, 1965. November

No. 65. 28, 1966. Decided March Solicitor General Marshall argued the cause for the United States. With him the brief were Assistant Attorney Doar, General Louis F. Claiborne and David Rubin. Bloch,

Charles J. by appointment of Court, argued the cause and filed a brief for appellee Lackey.

James E. Hudson argued the cause and filed a brief for appellees Guest et al. delivered the opinion

Mr. Justice Stewart Court.

The six defendants in this case were indicted United States grand jury in the Middle District of C. of 18 U. S. in violation conspiracy for criminal Georgia relevant provides section That ed.). (1964 241§ part: oppress, injure, conspire to persons more

“If or two free exer- in the any citizen or intimidate threaten, secured privilege or any right or enjoyment cise or laws the Constitution himto exercised having so of his or States, because ; same or $5,000 than not more fined shall be

“They both.” years, ten than not more imprisoned indictment alleged paragraphs, numbered In five Negro deprive to by the defendants conspiracy single of several enjoyment and the free exercise citizens of laws of and by the Constitution rights secured specified moved dismiss The defendants States.1 follows: was as indictment, The filed on October “THE GRAND JURY CHARGES: continuing to January 1, 1964, and “Commencing on or about GUEST, JAMES SPER- indictment, HERBERT the date of MYERS, DENVER WILLIS LACKEY, CECIL GEON .WILLIAM HAMPTON SIMS, GEORGE PHILLIPS, and JOSEPH HOWARD Georgia, Di- Athens did, District of TURNER, within the Middle persons other, with other vision, conspire together, each and threaten, intimi- injure, oppress, and Jury unknown, to to the Grand Athens, vicinity of in the 'Negro of the United States citizens date Negro by citizens of enjoyment said Georgia, exercise and in the free by privileges to them the Constitu- following rights secured and States: and laws of the United tion goods, enjoyment equal of the to the full and

“1. The of privileges, advantages, and accommodations facilities, services, public places of restaurants, other theaters, and picture motion accommodation; upon utilization, discrimination equal without The “2. Athens, Georgia, vicinity of race, public facilities in the of of

the basis ground charge on the an the indictment it did not offense under the laws of the United States. The Dis- trict Court sustained the motion and dismissed para- indictment as to all and all numbered defendants graphs Supp. of the indictment. 246 F. 475. owned, operated managed by Georgia or or on behalf of the State of thereof; subdivision full white

“3. and use the same terms as public highways vicinity Athens, of the citizens streets and Georgia; freely Georgia

“4. The to travel from the and State highway and use facilities and other interstate instrumentalities of Georgia; commerce within the State enjoyed “5. Other exercised and white citizens in the vicinity Athens, Georgia. part plan purpose conspiracy

“It was a and that its objects means, including following: be achieved various By shooting Negroes; “1. By beating Negroes;

“2. By killing Negroes;

“3. By damaging destroying property Negroes; “4. and By pursuing Negroes threatening “5. in automobiles and them with guns; By making telephone Negroes lives,

“6. calls to threaten their property, persons, by making person; and such threats in By going disguise highway premises

“7. on the on the persons; other By causing Negroes by reports

“8. the arrest of means of false Negroes that such had acts; committed criminal By burning night public “9. crosses at in view. 241,

“All in 18, violation of Section Title United States Code.” only The concerning additional indication in the record the factual charged details of the conduct with which the defendants were is the statement of the knowledge District Court that: “It is common two, defendants, Myers, already that of the Sims and have been prosecuted Superior in the County, Georgia Court of Madison for jury guilty.” the murder of Lemuel A. Penn and found not Supp. 475, 246 F. 487.

749 directly to this Court appealed States The United We S. C. 3731.2 Appeals Act, the Criminal under jurisdiction of our question decision of postponed now 932. It is the merits. 381 U. S. hearing jurisdiction not have that this Court does apparent on this direct sought issues to be raised decide one of the however, appellate our appeal. issues, As to the other follow, and for reasons that we jurisdiction clear, in of District Court. As judgment reverse the Price, p. decided we post, 787, today, United States v. not with statutory construction, deal here with issues of of power. issues constitutional

I. paragraph numbered of the re- indictment, first flecting portion language (a) of 201 of the Civil Rights (a) '§ Act C. 2000a (1964 ed.), alleged conspired the defendants to injure, oppress, threaten, Negro and intimidate citizens the free exer- cise and enjoyment of:

“The to the full equal enjoyment of the goods, services, facilities, privileges, advantages, and picture accommodations of motion theaters, restau- rants, places and other public accommodation.” appeal This only concerns paragraphs first four numbered of the indictment. The Government conceded in the District Court paragraph the fifth nothing added indictment, and no question is raised here paragraph. as to the dismissal (a) Section 201 Rights Civil Act of 42 U. S. C. (a) (1964 ed.), provides: 2000a persons “All shall be equal enjoyment entitled to the full and goods, services, facilities, privileges, advantages, and accommo- any place public dations of accommodation, defined section, segregation without ground discrimination race, on the color, religion, origin.” or national coverage picture

The criteria for of motion theaters the Act (b)(3) are stated (c)(3), and 201 42 U. S. §§201 C. 2000a §§ paragraph that District Court held The against rights an offense se- failed to state indictment by or laws the United States. cured Constitution para- fatal in The court found a flaw the failure allegation an graph include that the acts of the discrimination, defendants were motivated racial an allegation thought the court essential to charge an inter- rights ference with Rights secured Title II of the Civil of 1964.4 say Act The court went on to in that, event, 18 241§ C. is not an available sanction protect rights secured by (b) title because 207§ Act, of the 1964 (b) (1964 U. S. C. 2000a-6 ed.), specifies that provided the remedies II Title itself are (b)(3) (c)(3) (1964 ed.); coverage and 2000a the criteria for (b)(2) (c)(2), restaurants are stated in and 201 42 U. S. C. §§201 (b) (2) (c)(2) (1964 ed.). 2000a and 2000a No §§ issue is raised allege here as to the specifically failure of the indictment to applicable places public the Act is accommodation described paragraph in this of the indictment. 4The District .Court said: “The Government contends that rights paragraph enumerated in 1 stem from 2 of Title the Civil Rights automatically Act of purview and thus come within The argument para 241. Government conceded on oral graph nothing one would add to the indictment absent the Act. It is not clear how the paragraph mentioned one can be upon said to come from (a), the Act because 201 which the drafts relied, man doubtless lists the essential element 'without discrimina segregation ground tion or race, on the color, religion, or national origin.’ This paragraph element is omitted from one of the indict ment, appear charging part and does not in the of the indictment. Supreme The Cruikshank, supra, Court said in page 556, 92 U. S. at deprivation where involved, to vote was “ may suspect ‘We that “race” hostility; was the cause of the but it is not so description averred. This is material to a of the sub- supplied stance of the by implication. offense and cannot be Every- thing charged positively, essential must be inferentially. ” form, defect here is not but in Supp. 475, substance.’ 246 F. 484. the title rights enforcing means of to be the exclusive secures.5 to the United is available to this Court appeal

A direct 3731, S. C. Act, 18 U. Appeals under the Criminal States dismissing any indict- . . . judgment “a decision or from or decision such thereof, where count any ... or ment construction the . . . upon is based judgment is founded.” indictment ... which the upon statute judg- District Court’s however, the case, present In the was indictment of the paragraph first as to the ment upon its determination alternatively, based, at least pleading. a matter as was defective paragraph this Appeals the Criminal under of review principles Settled District Court’s review of the our preclude Act therefore In United indictment. this branch on judgment Hughes, Justice Co., Chief 308 U. S. Borden States principles these Court, set out a unanimous for speaking clarity: with characteristic our review governing principles

“The established judgment not lie from does Appeal (1) are these: of the indict- the mere deficiencies on which rests C. Rights 42 U. S. Act of (b) of the Civil Section (1964 ed.), §2000a-6(b) states: means exclusive provided be the in this title shall “The remedies nothing title in this title, but enforcing based on agency from any or local preclude any or State individual

shall not law any Federal or State any right other asserting based requir- including any ordinance title, statute or with this inconsistent accommodations, public establishments ing nondiscrimination may criminal, be avail- remedy, which civil or pursuing or from right.” of such or enforcement vindication able for the history, legislative the District provision and its Relying on this enacting Congress in crystal clear that “It seems Court said: anyone to subject intend to did not Rights Act of 1964 the Civil provided for except specifically those penalties any possible criminal Supp., at 485. 246 F. Act itself.” in the from a construc- distinguished pleading, ment as the indictment. which underlies the statute tion of Dis- lie in a case where the appeal anwill (2) Nor the construction has considered trict Court upon has also rested its decision statute but ground pleading of a which independent defect In we that case to our examination. subject question judgment cannot disturb (3) becomes abstract. This Court construction given to indict- accept the construction must District Court as that is a we ment matter at S., are not to review. . . .” 308 authorized U. 193. Co., also States

See United & 318 U. S. 444. Swift changed by is not we result the circumstance that jurisdiction appeal have over this as to the other para- graphs Borden, of the indictment. States v. an supra, involved comparable indictment present one for purposes of jurisdiction under the Criminal Appeals Borden, In Act. the District Court had all held four counts of the indictment invalid as con- matter of struction of the Act, Sherman but had also held the third count defective as a matter pleading. The Court ac- cepted jurisdiction on appeal direct as first, second, and fourth counts the indictment, but it dismissed the appeal as to the third count for want of jurisdiction.. “The Government’s appeal does open not the whole case.” 308 S. 188, U. 193.

It hardly necessary to add that our ruling as to the Court’s1lack jurisdiction now to review this aspect of the case implies no opinion whatsoever as to the correct ness either of the District Court’s appraisal of para this graph of the indictment as a matter of pleading or of the court’s view of preclusive effect of § 207 (b) of the Civil Rights ofAct 1964.

II. paragraph indictment numbered The second oppress, conspired injure, alleged the defendants Negro threaten, and intimidate citizens the United of: enjoyment in the free exercise and States dis- utilization, “The without facilities upon race, public crimination the basis of vicinity Georgia, owned, operated of Athens, Georgia managed by or or behalf of State of any subdivision thereof.” Correctly characterizing embracing paragraph as rights by the protected Equal Protection Clause Amendment, Fourteenth' the District Court as held statutory matter of construction that 18 S. C. does encompass rights, Fourteenth Amendment and further held as a matter of constitutional law that “any broader of 241§ construction . . . would render void for indefiniteness.” Supp., F. at In so 486. holding, the District Court error, was in opinion our Price, in United States v. post, p. 787, today, decided abundantly makes clear.

To sure, be Price involves under the Due Process Clause, present whereas the case rights involves the under Equal Protection Clause. But no possible sug- reason gests concluding itself for 241—if it protects Four- teenth Amendment rights protects rights by secured the — one Clause but not those by secured the other. We have made clear in Price that when 241 speaks “any of right or privilege secured ... the Constitution laws of the United States,” it precisely means that.

Moreover, of inclusion Fourteenth rights Amendment within compass the of 18 U. S. 241§ C. does not ren- der statute the unconstitutionally vague. Since the gravamen of the offense is conspiracy, the requirement that the offender act must with a specific intent inter-

754 satisfied. is question rights federal

fere with the States v. States, 91; 325 U. v. United Screws And opinion). (dissenting Williams, 70, 93-95 341 U. S. described Clause Protection Equal under rights been so have of the indictment paragraph by this line of by a consistent established firmly precisely and of specification lack of Court,6 in this decisions 241 can raise no language of itself these vague- ground question on constitutional serious ness or indefiniteness. Price, indict- however, the indictment

Unlike person case no to have present alleged ment in the names any way argu- of state acted in under the color law. made since no that, Equal ment is therefore there exist rights against wholly Protection Clause private action, judgment the District Court this branch of the case must be affirmed. face, argument On its unexceptionable. The Equal Protection speaks Clause to the State or to those acting under the color of its authority.7

In this connection, we emphasize 241§ its clear language incorporates no more than Equal Pro- tection Clause itself; the does statute not purport give substantive, as opposed to remedial, implementation to 6 See, g., e. Brown Education, v. Board U. S. 483 (schools); 347 City New Improvement Orleans Park Assn. Detiege, v. 358 U. S. Wright Georgia, v. S. 284, Watson Memphis, 373 U. v. 373 U. S. City New Barthe, Orleans v. (parks 376 S.U. 189 play grounds) ; City Holmes v. Atlanta, (golf U. S. course); Mayor City Council City Baltimore Dawson, v. Muir v. Louisville Park (beach); Assn., Theatrical 347 U. S. 971 (auditorium); Johnson v. Virginia, (courthouse) U. S. 61 ; Wilmington Burton Parking v. Authority, 365 U. S. 715 (parking City Turner garage); Memphis, 369 U. (airport). S. 350 7 “No deny State shall any . . . person jurisdiction within its protection laws.”

755 therefore Since we that Clause.8 secured any rights Protec- Equal terms the bare only here deal goes opinion in this nothing said itself, tion Clause legisla- broader other and kinds of of what the question 5 under constitutionally enact might, Congress tion or that Clause implement Amendment the Fourteenth of the Amendment.9 provision other Pro rights Equal under the commonplace It is in there has been only itself arise where tection Clause color of acting or of one under the of the State volvement authority. Protection Clause “does not... Equal its has which one citizen under any thing rights add against another.” United States v. the Constitution Cruikshank, As Mr. U. S. 542, 92 554-555. Justice Douglas recently put “The Amend it, more Fourteenth action, state against protects ment the individual by individuals.” United States wrongs v. against done Williams, (dissenting This opinion). 341 U. S. has beginning. been view the Court from the Cruikshank, supra; United States v. United States v. Harris, Rights Cases, Civil 106 U. S. 109 629; 3; Hodges States, v. United States v. 1; Powell, 212 U. S. 564. It remains the Court’s view g., Newton, e. Evans today. See, v. S.U. 296; Price, United States post, p. 787.

This is not to say, however, that involvement the State need be either or variety exclusive direct. In a of situations the Court has found state action of a nature sufficient create under the Equal Protection Clause even though the participation of the State was pe- ripheral, its action only was one of several co-operative p. 747, supra. See 9Thus, contrary suggestion in Mr. Justice BrenNAN’s separate opinion, nothing opinion slightest said in this has the bear ing validity on the or construction of Title III or Title IV of the Rights Civil Act of (1964 ed.). U. S. C. 2000b, 2000c §§ 756 See, g., e. violation. constitutional leading to the

forces Pennsylvania v. Board Kraemer, 1; 334 U. S. Shelley v. Parking Wilmington Trusts, 230; Burton v. U. S. 353 of Greenville, City Authority, 715; Peterson v. 365 U. S. of Louisiana, 267; S. 373 U. Lombard v. 244; 373 U. Florida, Robinson v. 130; Maryland, 378 U. S. Griffin Newton, supra. Evans v. 153; 378 S.U. of the no determination however, requires case,

This in order to state action must attain threshold level that Clause. This is rights Equal create under the Protection because, contrary argument litigants, so to the of the allegation express an of state indictment fact contains of require at least the denial involvement sufficient accomplishing of motion to dismiss. One the means according object conspiracy, indictment, “By causing Negroes by was the arrest means false reports Negroes that such had committed criminal Maryland, 226, acts.” In Bell v. 378 U. S. three mem- expressed bers of the Court view a private busi- nessman’s invocation of police judicial state action to carry policy out his own of racial discrimination was suf- Equal ficient create Protection Clause in those against whom the racial discrimination was directed.11 Three other members the Court strongly disagreed with that view,12and three expressed no opinion on the question. allegation of the extent of official involve- ment in present is case not clear. It may charge no more co-operative private than and state action similar to Bell, involved but it may go considerably further. For example, the allegation is enough broad to cover a charge of active connivance by agents of the State in the making the “false reports,” or other conduct amount- supra. See note 11 378 Doug (separate at 242 opinion of Mr. Justice id., las); (separate at opinion of Mr. Goldberg). Justice 12 Id., at (dissenting opinion of Mr. Black) Justice . to consti- clearly sufficient official discrimination ing to Protection Equal rights protected tute denial of particu- is bill Although possible Clause. dis- goes trial, would if the case lars, proof or the by officials action of that kind co-operative no close enough prevent dismissal allegation State, this branch the indictment. III. indictment paragraph

The fourth of the numbered alleged conspired injure, oppress, that the defendants Negro of the threaten, and intimidate citizens United of: enjoyment States the free exercise and from the State right freely

“The to travel to and highway and facilities and other Georgia to use instrumentalities of interstate commerce within the 13 Georgia.” State of in- dismissing

The District Court was in error in paragraph. right constitutional dictment as necessarily from another, to travel one State to and highways use the and other of inter- instrumentalities doing position commerce in funda- so, occupies state concept mental of our Federal is a Union. It right firmly repeatedly that has been established and Nevada, In recognized. Crandall v. invali- Wall. alleged paragraph The third numbered the defendants con spired Negro injure, oppress, threaten, citizens and intimidate enjoyment of the United States in the free exercise of: “The to the full and use on the same terms as white public highways vicinity Athens, of the citizens streets and Georgia.” public paragraph

Insofar as the third refers to the use of local facilities, it is covered the discussion of the second numbered opinion. paragraph of the indictment in Part II of this Insofar as paragraph highways the third refers to the use of in inter- streets present commerce, of the fourth state it is covered discussion paragraph of the indictment. numbered leaving the State every person dating a Nevada tax the state- guide as its the Court took carrier, by common Cases, Passenger Taney in the ment of Chief Justice 492: How. the Fed- for which great purposes

“For all people, are one formed, was we government eral all citizens country. common We are one com- members of the same States; and, as repass pass must have the munity, interruption, of it through every part without own States.” freely as our Wall., See 6 at 48-49. provided

Although the Articles Confederation ingress and of each State shall have free people “the State,” from finds regress to and other explicit reason, no mention in the Constitution. The suggested, elementary has been is that a so was concomi- beginning necessary conceived from the to be a stronger tant of the Constitution created.15 Union In any event, throughout freedom to travel the United long recognized right been as a under States has basic Fears, See v. 179 270, Constitution. Williams U. S. Twining Jersey, 211 97; v. New S. Edwards 274; 78, U. (concurring v. 314 177 California, 160, opinion), U. S. O’Neill, (concurring New York opinion); 181 v. 359 S.U. 6-8; (dissenting opinion). 12-16 1, California, invalidating

In 314 160, Edwards v. U. S. impeded law which pas- California the free interstate sage indigent, of the the Court based its reaffirmation federal upon interstate travel the Com- ground of merce Clause. This decision was consistent establishing precedents firmly that the federal com- 14 IV, Art. Articles of Confederation. 15 Rights Chafee, 1787, Three Human in the See Constitution of at ' (1956). 185

759 in encompasses the movement power surely merce commerce of as well as commodities. persons interstate Ferry Pennsylvania, Gloucester Co. 196, 203; 114 S. v. U. n; Covingto Bridge Kentucky, Co. Cincinnati 154 v. States, Hoke v. United 227 S. 204, 218-219; U. U. Hill, 308, 320; United States v. 420, 248 423. It U. S. in is also well settled our the federal com decisions that power Congress legislate merce authorizes for the protection from individuals violations civil impinge on their free in interstate com movement States, merce. Mitchell Hender v. United 80; 313 U. S. States, Boynton Virginia, son v. United 816; U. S. v. States, Atlanta Motel v. United 454; 379 U. S. McClung, Katzenbach v.

241; S. 294. U. Although recurring there have been differences emphasis within the Court as the source the con- travel, stitutional of interstate there is no need All here to canvass those differences further.16 have agreed explicit recognition Its exists. as rights protected by one of the federal what is now 18 241 goes S. C. back at least far 1904. as Moore, States v. F. 633. We reaffirm now.17 heavily Wheeler, The District Court relied on United States v. dismissing 254 U. S. this branch of the indictment. That alleged conspiracy compel case involved an residents of Arizona was, to move out that State. The of interstate travel there fore, directly continuing validity involved. Whatever Wheeler may facts, have as restricted to its own the dicta in the Wheeler opinion present relied on the District Court case have subsequent California, been discredited in decisions. Edwards Cf. 160, 177, J., concurring); 180 United States v. (Douglas, Williams, 70, 341 U. S. 80. emphasized separate As in Mr. Justice Harlan’s opinion, 241§ protects only against by with interference secured other right federal or laws Constitution itself. The to interstate right guarantees, is travel a that the Constitution itself as the cases Although cited the text make clear. these cases in fact involved governmental right travel, interference with the of free interstate course, every

This does not criminal con mean, an spiracy affecting right individual’s of free interstate passage is within the sanction of A 18 U. S. C. 241. specific right to interfere with the federal must intent proved, be and at a trial the defendants are entitled to jury phrased instruction in those terms. Screws v. States, S. 91, 106-107. Thus, example, for a conspiracy to rob an not, interstate traveler would itself, predominant violate 241. But if the purpose of the conspiracy impede is to prevent or exercise right of interstate or travel, oppress person because of his exercise that right, whether or not then, by racial motivated discrimination, conspiracy be comes a proper object of the federal law under which the indictment brought. this Accordingly, case was grant error was the motion to dismiss on branch this of the indictment.

For these reasons, judgment of the District Court is reversed the case is remanded to that for court proceedings further opinion. consistent

It is so ordered. reasoning fully supports their the conclusion constitutional against of interstate travel is a secured interference from any governmental whatever, private. source whether In this con- nection, important freely it is to reiterate that to travel protection from State to finds quite State constitutional independent of the Fourteenth Amendment.

We are not concerned here with the extent to which interstate may regulated travel be or controlled the exercise of a State’s police power acting within the confines of the Fourteenth Amend California, ment. See Edwards (concurring v. 314 U. S. opinion); O’Neill, New York v. 359 U. S. 6-8. Nor is there permissible issue here as to the extent of federal interference with within the confines of the Due Process Clause of the Fifth Rusk, 1; Aptheker Amendment. Cf. Zemel Secretary v. 381 U. S. State, 500; Dulles, 378 U. S. Kent v. 357 U. S. 116. whom Mr. with Black Clark, Justice Mr. Justice concurring. join, and Mr. Fortas Justice in this case but believe opinion I of the Court join the its II in which the to comment on Part worthwhile it charging of the indictment portion Court discusses oppress, threaten conspiring injure, appellees in the Negro and intimidate citizens of the United States free enjoyment exercise and of: equal utilization,

“The without dis- upon public crimination the basis of race, of facilities vicinity Athens, Georgia, owned, operated or managed by Georgia or on behalf of the State any or subdivision thereof.” appellees contend that the indictment is invalid which returned, pro- since 18 U. S. C. under it was only against tects interference with the exercise of the utilization of state facilities, which “secured” Fourteenth Amendment absence of state action. With respect to this contention upholds the Court the indictment on ground alleges conspiracy was accomplished, “[b]y in part, causing Negroes by the arrest of means of reports false Negroes that such had committed criminal acts.” The Court reasons that allegation of the indictment might well cover active by agents connivance of the State in the making of these reports false carrying on other amounting conduct to official discrimination. By so construing the indictment, it finds language sufficient to cover a denial protected by the Equal Protection Clause. The Court thus removes from case necessity for a “determination threshold level that state action must attain in order to create rights under Equal Protection Clause.” A study of the language in the indictment clearly shows one, capricious is not construction Court’s

that the the well as construction, that with agree I therefore follows. that conclusion the question the opinion its out of carves

The Court Amend- Fourteenth § under 5 Congress, power of Pro- Equal the implementing legislation enact ment, to the Fourteenth provision of any other or tection Clause indict- interpretation the The Court’s Amendment. Congress, by whether question the clearly ment avoids punish private power has the legislation, to appropriate Amendment with Fourteenth that interfere conspiracies My facilities. public to utilize as the rights, such dispo- the however, says that Court’s Brennan, Brother appellees’ aforesaid acceptance an sition constitutes further language 241. Some of his § contention as to indicates sub silentio that Con- suggests that the Court power conspiracies. to outlaw such gress does not have specifically any such con- Although rejects Court ante, appropriate I both notation, p. 755, is, believe, say circumstances here that necessary under the and specific language there now can be no doubt all empowers Congress punishing to enact laws § conspiracies or without state action —that interfere —with rights. with Fourteenth Amendment Mr. in concurring part dissenting Justice Harlan, part. in join

I I and II1 of Parts the Court’s but I opinion, III in sweep. cannot to Part its full To the subscribe (1964 extent that it is there held that 241§ 18 U. S. C. ed.) conspiracies, embracing reaches only the action of join The action of opinion three of the who Justices the Court’s cursorily pronouncing far-reaching nonetheless themselves on the questions deliberately constitutional not reached in Part II seems me, say very least, extraordinary. with interfere or otherwise persons, obstruct private travel, in interstate freely engage citizens agree I hand, other to dissent. On I am constrained in- state interference with such 241 does embrace aspect this and I therefore consider travel, terstate Part reasoning of on the of the indictment sustainable opinion. II of the Court’s be in the Constitution

This to travel must found only conspiracies This is so itself. because covers with citizen in exercise or any to interfere the “free or privilege “secured to him the enjoyment” States,” “right Constitution or laws of no United to travel” can be found other law My disagreement States. phase opinion of the Court’s lies in While past do this: cases establish there indeed is a “right constitutional to travel” between States free from govern- unreasonable today’s mental interference, decision is the first to hold that such protected against also movement private interference, and, depending on the constitutional source of I right, the think either or impermissible unwise so to the read Constitution.

Preliminarily, nothing in the Constitution expressly secures the right to travel. In contrast the Articles of Confederation provided in Art. IV:

“The better to secure and perpetuate mutual friend- ship and among intercourse people the of the differ- ent States in this Union, the free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have ingress free regress and to from any and other State, and shall en- joy therein all the privileges of trade and commerce, subject to the same duties, impositions and restric- tions as the inhabitants thereof respectively .. . .” eliminated ingress regress” and was “free This to right discussion of Constitution without the draft from Convention, was of main objective though even has been assumed stronger union. It to create obviously an it was so dropped was because the clause it was neces- federal structure that part of our essential Con- general more clauses sarily subsumed under Wheeler, 254 States See United v. stitution. I propose examine the several asserted constitu- 294. scope for the and of its travel, tional bases protection relation each source.

I. Because the close proximity ingress regress and the Privileges and Immunities Clause Articles Confederation long it has been declared is a privilege immunity of national citizenship under the In Constitution. the influential opinion of Mr. Washington Justice on circuit, Corfield Coryell, C. (1825), Wash. C. 371 the court ad- dressed question itself to the are the privileges —“what immunities citizens in Id., the several states?” at 380. was concerned with a Jersey New stat- Corfield ute restricting to state citizens for rake oysters, a statute which the upheld. court In analyzing the Privileges and Immunities Clause of the Constitution, IV, Art. 2,§ the court that it stated confined “these ex- pressions to those privileges and which are, immunities in their nature, fundamental,” and listed among them “The of a citizen of one pass state to through, or to reside any in other state, for purposes of trade, agri- professional culture, pursuits, or . Id., otherwise . . .” at 380-381.

The in dictum given was general approval in Corfield the first opinion of this Court deal directly with the right of free movement, Crandall v. Nevada, 6 Wall. taxing persons leav- down a Nevada statute which struck concur- noteworthy first his It is ing the State. would that he Mr. Justice Clifford asserted ring opinion for exclusively grounds on commerce void hold the statute any legislature impose cannot “that the State he was clear the several among commerce States.” upon such burden majority opinion 49. Mr. Justice at Wall., on the Commerce however, eschewed reliance Miller, and rather Import-Export Clause and the Clause looked to the nature of the federal union: people

“The these one United States constitute government necessarily nation. . . . has This capital by law goyernment established .... That any has to call this or all its citi- point zens to aid in its service The government, .... also, secondary has its importance offices all parts other country. On the sea-coasts on the rivers its ports entry. it has In the inte- land, rior it has its offices, its revenue and its offices, sub-treasuries. In all these it demands services of its citizens, bring entitled to them to those points from all quarters of nation, power and no can exist a State obstruct that would not enable it to purposes defeat the for which the government was established.” 6 Wall., at 43-44. Accompanying this need of the Federal Government, Court found a correlative right of the citizen to move unimpeded throughout the land:

“He has the right to come to the government seat of assert claim he may upon have govern- ment, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a to free access to its sea-ports, through which all the operations of foreign trade and commerce are offices, land sub-treasuries,

conducted, in sev- justice courts of and the offices, revenue independent right is in its nature this States, and eral pass soil he must over whose State the will Wall., at 44. of it.” 6 in exercise thus on very clearly, was opinion, focus of that by citizens. on free movement by the States impediments when Mr. Miller subsequently Justice emphasized This is unsup- nor is “neither novel approach asserts that fundamentally, ported by authority,” is, because it taxing power of the exercise of a State’s to ob- question struct the functions Federal Government: “[T]he right of impede the States this mode to or embarrass operations of that government, constitutional or the rights which its citizens hold under has it, uniformly been denied.” 6 Wall., at 4A-45. cases, alluding

Later privileges immunities, have dicta included the movement. See Paul free Virginia, Fears, Williams v. v. 168, 180; Wall. S.U. 270, 274; Twining v. Jersey, New 211 U. S. 78.

Although travel respectable thus has prece- dent to its support status as a privilege and immunity of national citizenship, important it is to note that those cases all dealt with simply travel as affected by oppressive state action. Only one prior case in this Court, United States Wheeler, was argued precisely terms of a right to free movement as against interference private individuals. There the Government alleged a conspiracy under prede- cessor of § 241 against the perpetrators of the notorious Deportations.2 Bisbee The case argued was straightfor- wardly in terms of whether the right ingress free

2 For a discussion of the deportations, see The President’s Media tion Comm’n, Report on the Deportations (November Bisbee 1917). national right a to be parties both egress, admitted against pri- guaranteed constitutionally citizenship, was Brief for the Defendants The conspiracies. vate Hughes, was Charles Evans whose counsel Error, later of its gives as one States, of the Chief Justice right pertaining is a to far as there points: main “So ingress egress free or with citizenship Federal to have right essentially to one respect States, the several against the action of the themselves protection States acting authority.” Brief, p. and of those under their at i. with Court, dissent, accepted interpretation one this of the right of interstate movement, unrestricted observ- ing Nevada, supra, inapplicable Crandall was be- v. alia, inter cause, dealt state action. 254 atS.,U. discussing 299. More recent cases or applying right to always interstate travel have been in context of oppressive g., state action. e. See, Edwards v. Cali- fornia, 314 and other cases discussed, infra.3

It is accordingly apparent right unimpeded to interstate as a regarded privilege immunity and travel, citizenship, historically national was seen as method of breaking down facilitating state provincialism, creation of a true federal union. In one case in private which a conspiracy to obstruct such movement presented predecessor was heretofore to Court, very apply today statute we was held not to right. encompass such

II. for the possible A second constitutional basis among the interference is the Com- move States without Washington articulated merce Clause. When Mr. Justice Moore, 630, is on United States 129 F. The Court’s reliance only privilege misplaced. not a That case held it was organize immunity labor unions. The reference to “the purely dictum. pass other” was incidental from one state of a state field, in Cor it was the context he activity by outsiders, economic impeding statute atC., his in economic terms. Wash. C. cast statement Ne- concurring The two Justices Crandall v. 380-381. argument, vada, supra, solely on the commerce rested indicating again the close connection between freedom principles of commerce and travel as of our federal union. California, In 314 U. the Court held Edwards v. unimpeded per- movement of squarely that guaranteed against oppressive legislation state sons is and declared unconstitutional Clause, the Commerce restricting entry the indigents a statute California into that State. of the Commerce Clause to

Application this area has advantage supplying longer a tradition of the case law principles adjudication. and more refined States do rights quarantine, have of taxation and see Edwards v. California, 314 S., (concurring at 184 opinion), which weighed against general must be the right of free move- ment, and Commerce Clause adjudication has tradition- ally been the means of reconciling these interests. Yet this approach to travel, like that found in the privileges and immunities cases, is concerned the interrelation of state and federal power, not —with an exception to be dealt with in a private moment —with interference. Debs, case of In re 158 U. 564, may thought be

to raise some doubts as to proposition. There the United States sought to enjoin Debs and members of his union from continuing to by means of a obstruct — strike —interstate commerce and the passage of the mails. The Court that Congress held and the Executive could certainly act keep the channels of interstate commerce open, that a court of equity had no power less enjoin what public amounted to a nuisance. It might Debs permits Federal to the extent argued be against private to obtain an injunction Government the crim alleged in present indictment,4 conspiracy ground applicable should be well on the inal statute the same, interest both cases is governmental that the underlying the Com namely policy to vindicate 241 is However, § merce Clause. not directed toward governmental interests; requires vindication private right under law. can federal No such be Debs, which simply found stands for proposition gives Commerce Govern Clause Federal standing ment to sue on a pri basis similar to that of vate individuals under nuisance law. The substantive persons of private enjoin such impediments, of course, from any devolve state not federal law; seem ingly inconsistent discussion in Debs appear would sub Erie R. Co. stantially vitiated Tompkins, U. S. 64.

I find in any cannot past of this case law solid support for conclusion Commerce Clause em- braces a private be free from interference. And opinion the Court’s here makes no suggestion. such

III. possible One other source for the to travel should be mentioned. Professor in his Chafee, thoughtful study, “Freedom of Movement,” finds privileges both the approach immunities and the Commerce approach Clause unsatisfactory. thorough After a review of the history 4 It is equity not even clear enjoin that an court would a con spiracy alleged here, the kind for traditionally equity will not enjoin Developments a crime. See in Injunctions, Law— 994, (1965). Harv. L. Rev. 1013-1018 5In Rights Human Three in 1787, the Constitution of at 162 (1956). he concludes question dealing with the

and cases in id., seen 209, best right,” at human this “valuable terms: process due has used in the Court

“Already several decisions right of the safeguard the Process Clause the Due in- they please reside where any race to members and injunctions. regardless of ordinances state, side to assure equally available this clause Why is And un- state one desires? right to live government on by the national restraints reasonable Due Process Clause upset can be mobility ‘liberty’ Thus the Amendment .... in the Fifth away cannot be taken beings human which of all liberty speech, law includes process of without due liberty and also assembly, move- press, religion, Id., at 192-193. ment.” unimpeded approach process This due In Kent by this Court. has been endorsed movement Dulles, that “The 116, the Court asserted v. citizen ‘liberty’ of which the part is a right to travel of law process without due under deprived be cannot Nevada, id., citing at Crandall v. Amendment,” Fifth California, It is true that supra. Edwards v. supra, and essentially statutory holding in that case turned State, Aptheker Secretary grounds. However, Court, applying this constitutional 378 U. S. forbidding mem- struck down federal statute doctrine, organizations passports. obtain bers of Communist dissenting opinions affirmed the Both the majority aspect liberty travel is an principle that the guaranteed by the Due Process Clause. process

Viewing terms, to travel due clearly inapplicable present make it would course, governmental process speaks only for due action. case, IV. grounding for of the various bases survey

This of show- only to the extent conclusive “right to travel” is acknowledged an constitu- has never been that there ing and that private interference, free from tional to be ap- seen and traditionally has been question underpinning asserted, whatever the constitutional plied, governmental impediments. in- only against being is, however, necessary as nebulous as it volved policy precedent. to consider it terms of as well as a general proposition very As it seems to me dubious the Constitution was intended create certain rights private against individuals as other private indi- viduals. The Constitutional Convention was called to establish a nation, not to reform the common law. Even the Bill of Rights, designed protect personal liberties, was rights directed at against governmental authority, not other individuals. It is true that there is a very narrow range against individuals which have been into read the Constitution. parte In Ex Yarbrough, U. S. the Court held that implicit in the Con- stitution is the right of citizens to be private free of inter- ference in federal elections. United Classic, States v. extended this coverage primaries. Logan v. States, 144 U. S. 263, applied prede- cessor of 241§ ato conspiracy to injure someone in the custody of a United States marshal; the case has been read as dealing with a privilege and immunity of citizen- ship, but it would seem to have depended as well on extrapolations from statutory provisions providing for supervision of prisoners. The in In Court Quarles, re 158 U. S. 532, extending Logan, supra, declared there was a right of federal citizenship to inform federal officials of violations of federal law. See also United announced which Cruikshank, 542, 552, S.U.

States the Con- petition to assemble right a federal in dicta grievances. for a redress gress own cases on their of these validity Whatever adding for hardly persuasive authorities they are terms, immunities privileges and the collection cases to travel. The private impediments to be free essentially are and are concerned narrow, just discussed relationships with important the vindication of with voting elections, in federal in- Federal Government — communicating enforcement, volvement federal law present the Federal Government. The case stands considerably footing. on a different arguable It is same considerations which led the Court on numerous occasions to find a right of free against oppressive movement state action justify now a similar result with respect to private impediments. Nevada, Crandall v. supra, spoke of the need to travel capital, to serve and consult with gov- the offices of A ernment. basic reason for the formation of this Nation was to facilitate commercial intercourse; intellec- tual, cultural, scientific, social, political interests are likewise served free movement. Surely these inter- ests can impeded be by private vigilantes as well as state Although action. argument is without force, I do not think is particularly persuasive. There is a difference in power between States private groups great so analogies between the two tend to be misleading. If the State obstructs free intercourse of goods, people, ideas, the bonds of the union are if a threatened; private group effectively stops such com- munication, there at most a temporary breakdown of law and order, to be remedied by the exercise of state authority byor appropriate federal legislation.

To decline to find a constitutional right of the nature asserted here does not render the Federal Government federal by railroads, interstate commerce As to helpless. unreason- for “undue or already remedies provides law 380,- amended, C. prejudice,” able Stat. racial apply has been held (1) (1964 ed.), which § 3 States, 339 Henderson v. United discrimination. carriers, 49 applies A statute to motor Stat. 816. similar (d) (1964 ed.), 558, amended, 49 U. S. C. 760, (b) (1964 carriers, to air Stat. S. C. 1374 454; Fitzgerald ed.). Boynton Virginia, See 364 U. Airways, v. Pan American World 229 F. 2d 499. Act of Rights 243, Civil 78 Stat. deals with other types of to obstructions interstate commerce. Indeed, present holding, arguable under the Court’s is any it conspiracy public to in discriminate accommodations having impeding effect interstate commerce be could reached under Title II of unaided Rights Civil Act of 1964. Congress Because has wide authority to in legislate this area,, it unnecessary— seems if prudential grounds are relevance, see Baker v. Carr, 369 U. S. 186, 258-259 J., concurring)— (Clark, to strain to find a dubious constitutional right.

y. If I have in showing succeeded anything in this con stitutional it exercise, is that until today there was no federal from private be free interference with transit, interstate and very little reason for creating one. Although the Court ostensibly has only “discovered” private in the Constitution applied and then § 241 mechanically to punish those who conspire to threaten it, it be recognized should that what the Court has effect done is to use this all-encompassing criminal statute to fashion federal common-law crimes, forbid den federal judiciary since the 1812 decision in United Hudson, States v. 7 Cranch 32. My Brother dissenting Classic, States v. supra, Douglas, application the indiscriminate dangers noted well enough for us “It 241: of § predecessor of the offense some of a statute penumbra vague find then legislated, have Congress could about which offen- highly it is crime because aas particularize S., at 331-332. 313 U. sive.” and commerce the immunities gainsay I do not open for the way leave the Constitution provisions they right, since constitutional “private” finding of this action. governmental solely in terms not speak do in- criminal wrong to sustain I think it Nevertheless, sub- To do so ground. such an uncertain dictment vagueness challenge on score serious jects § in the position this Court place in effect to and serves the name of constitutional making law under criminal misgivings about It to subdue interpretation. is difficult potentialities this decision. only of aspect I sustain this the indictment would sufficiently premise alleges state interference ground. with on no travel, interstate and other Brennan, with whom Chief Justice Jus- Mr. Douglas part in join, concurring and tice Justice Mr. part. in dissenting opinion. I I of I join Part Court’s reach the same result as the Court on that branch of the indictment dis- opinion cussed III its but for Part other reasons. I agree See footnote And with so much of infra. Part (1964 § II as construes 18 ed.) C. encompass conspiracies to injure, oppress, or threaten intimidate citizens in free exercise or enjoyment of rights Fourteenth Amendment that, and holds as so con- (cid:127) strued, § 241 is not void for indefiniteness. I do not agree, however, with the remainder of Part II which holds, Ias read the opinion, that conspiracy to inter- fere exercise of the to equal utilization a con- meaning within the not, facilities is state “right of a . . . the exercise to interfere with spiracy discrimina- Constitution” unless ... secured alleged in the by state officers involved tory conduct conspiracy.

I. paragraph The second numbered of the indictment charges conspired injure, oppress, that the defendants Negro threaten, and intimidate citizens the free exer- cise enjoyment equal utili- “[t]he zation, without discrimination upon race, the basis public owned, operated managed by facilities . . . or or Georgia on behalf of the State of subdivision Appellees thereof.” that as a contend matter of statu- tory construction conspiracy. does not reach such a They argue private conspiracy that a to interfere with the exercise of the right utilization of the state facilities described in paragraph is not, within the meaning of 241, conspiracy to interfere with exer- cise of a “secured” the Fourteenth Amendment because “there exist no Equal Protection Clause against private wholly action.”

The Court deals with this contention by seizing upon allegation an in the concerning indictment one of the means employed by the defendants to achieve the object of the conspiracy. The alleges indictment ob- ject of the conspiracy was to be achieved, part, “[b]y causing the arrest of Negroes by means reports false that such Negroes had committed criminal acts . . . .” The Court reads allegation this enough “broad to cover a charge of active connivance by agents of the State in the making of the ‘false reports,’ or other conduct amounting to official discrimination clearly sufficient to constitute denial of protected by Equal the Pro- tection Clause,” and the Court holds that this allegation, so construed, is sufficient to “prevent dismissal of this to mean I understand indictment.” of the

branch private proof the compelling how no matter that, Negroes intimidated murdered, assaulted, conspirators facilities, prose- state use of their prevent in order fail in must paragraph second numbered cution under law en- of active connivance proof the absence causing conspirators private with the officers forcement the false arrests. num- dismissing order the second

Hence, while the is reversed, of the indictment severe paragraph bered in- of the prosecution limitations on the branch implicitly imposed. are These limitations could dictment from an contention only acceptance appellees’ stem Equal because there exist no Protection Clause that, rights against wholly private action, conspiracy private persons to interfere with utili- zation of state facilities described the second num- paragraph bered is a conspiracy to interfere with a “right . . . by secured ... the Constitution” within meaning 241. In words, other the Court’s indictment, allegation As I read the regarding the false arrests paragraphs relates to all the other merely, and not as the Court suggests, to paragraph the second numbered of the indictment. See opinion. Hence, assuming n. in the Court’s that, as maintained by Court, allegation encompass could be construed to dis criminatory by conduct officers, state law enforcement it would be preventing a sufficient for basis the dismissal of each of the other paragraphs of the indictment. The to be free from discrimina tory by conduct law using privately enforcement officers while owned places public one) (paragraph traveling accommodation or while from (paragraphs State to State four), doing any three and or while thing else, unquestionably Equal secured Protection Clause. It would unnecessary therefore be to decide whether the travel from State to State is itself a secured the Constitu paragraph tion or whether one is defective because of either allegation discriminatory absence of an of a racial motive or because remedy provision Rights of the exclusive Civil Act of (b), (b) (1964 ed.). 78 Stat. 42 U. S. C. 2000a-6 numbered in the referred to second only right view the . . . “secured §of purposes for is, that paragraph seeking be free —when a is Constitution” by by discriminatory conduct facilities —from access to state in concert with state acting by persons officers or state officers.2 I am of 241. § construction agree that

I cannot with the interfere conspiracy a opinion state facilities described utilization of is a paragraph of the indictment numbered the second . . “right a . . . secured . to interfere with conspiracy meaning of 241-—with- § within the by the Constitution” participated state officers regard out to whether I such a alleged conspiracy. § believe reaches the Fourteenth Amend- private conspiracy, because prohibits conspiracy, of its own force such but ment congressional as an power § because exercise under § 5 of that Amendment, prohibits conspiracies all “right interfere with the exercise of a . . . . . secured . by the Constitution” and because the to equal utilization of “right state facilities is a . . . . secured . . by the Constitution” within the meaning phrase of that § used in 241.3

My difference with the Court stems from its construc- tion of the term “secured” as § used in 241 in phrase a “right . . . secured by ... the Constitution or laws

2 1 reading see no basis for a my more consistent with own view in the isolated opinion statement the Court’s that “the Equal under Protection paragraph Clause described of the indictment have firmly precisely [two] been . . . estab lished a consistent line of decisions in this Court . . . 3 Similarly, I believe that private conspiracy reaches a interfere with the to travel from State to State. I therefore need not question reach the whether the Constitution of its own prohibits private force right; interferences with that for I construe prohibit 241 to interferences, such and as so construed I am of opinion congressional power. valid exercise tacitly construes The Court States.”

of the United of 241 to coverage § restrict the so as to term “secured” by the “fully Constitu- protected” are those interferences private law. federal Unless or another tion prohibited in are right question of the exercise the law, the itself or another federal by Constitution view, “secured .. . cannot, in the Court’s be deemed right or laws of the States” so as by the United Constitution 241 to inter- applicable private conspiracy make to a § to of right. fere with the exercise The Court then premises that neither Fourteenth Amendment nor any prohibits private other federal law4 interferences right with the of equal exercise utilization of state facilities.

In my view, however, can be deemed “se- cured ... the Constitution or laws of the United States,” within meaning 241, §of though even only governmental interferences with the exercise of prohibited are by the Constitution (or itself another fed- Attorney ated, managed by Arguably this denied ing in of commence a against ^[4] This concert with state officers. such 78 Stat. premise General parties civil utilization of would authorize is action “for such questionable. complaint or are U. S. C. 2000b on behalf of “necessary any public facility relief from an individual § relief as Title (This, against private any III title (1964 ed.), may State or grant of which is the Civil be of effective relief.” the Act does not appropriate” is that he subdivision,” parties authorizes the owned, oper Rights not act “being Act remedy have an exclusive (b) similar to 207 II, of Title U. S. C. (b).) 2000a-6 affirmatively The Court disclaims intention to deal with Title III Rights of the Civil Act connection with the paragraph second numbered But, the indictment. as the District Judge opinion, observed in his the Government maintained that the paragraph described was “secured” the Fourteenth and, “additionally,” by Amendment Title III the Civil Rights Act Supp., position 1964. 246 F. at 484. That effectively was not abandoned in this Court. aris- by, means “created “secured” law). The term

eral States, upon,” Logan ing dependent under or A “fully protected.” rather than 263, 293, 144 U. S. within by the Constitution” is “secured ... Constitution, if from the meaning of 241 it emanates if in the Constitution. Section it finds its source as an exercise viewed, context, must thus be congressional of the Con- power amplify prohibitions invariably case, gov- stitution as is addressed, I contrary ernment Court, the view officers; dealing think are here with a we statute that seeks to implement not with terms” Constitution, the “bare pro- Section 241 Constitution. confined to tecting rights against private conspiracies that the Con- protects against stitution or another federal law also private duplicative interferences. No such function was Appendix envisioned in its enactment. See in United Price, p. 807. Nor post, States v. has Court con- 241 in in such restrictive manner con- § strued other Many rights have been to be texts. held encompassed additionally within 241 are not the sub- § specific ject protection legislation federal or of provision private of the Constitution addressed to indi- prohibitions For example, viduals. and remedies of 241 apply, regard § have been declared to without to alleged government whether the violator was a officer, to right interferences with the to vote in a election, federal parte Yarbrough, Ex 110 651, primary, U. S. or Classic, States v. 313 299; right U. S. to pub- discuss petition lic affairs or for redress of grievances, United Cruikshank, CIO, States Hague v. 92 542, 552, U. S. cf. v. 307 U. S. 512-513 496, (opinion of Collins Roberts, J.); Hardyman, v. 341 S. 651, (dissenting opinion); U. 663 right protected be against to violence while in the custody States, lawful of a federal officer, Logan v. United 144 263; U. S. and inform to of violations of Butler, The Quarles S. 532. In re law,

federal Price, post, in States v. of our decision United import full regarding 241 is to treat 787, pp. 796-807, § at p. rights arising from the Fourteenth Amend- purportedly just arising rights parity enumerated, ment in those reach of provisions. constitutional from other provi- vary particular with the constitutional should right. purposes is the For sion that source applying private conspiracy, the standard used to whether, for example, determine to discuss public affairs to vote a federal election “right is a . . . by secured ... the Constitution” very same standard to be used determine whether the right to utilization of state a “right facilities is . . . secured ... the Constitution.” For the right me, use state facilities dis- without crimination the basis of is, race meaning within the a right by, arising created under and dependent upon the Fourteenth Amendment and hence is a “secured” that Amendment. It finds its source that Amendment. As recognized in Strauder West Virginia, 310, “The Fourteenth Amend- ment makes no attempt enumerate the de- signed protect. speaks general It terms, those are comprehensive as possible. language Its pro- hibitory; but every prohibition implies the existence of rights . . .”. The Fourteenth Amendment commands the provide State to the members of all races with equal access to public the facilities it owns or manages, right the of a citizen to use those facilities without dis- crimination on the basis of race is a basic corollary of this command. Cf. Brewer v. Hoxie School District No. 46, 238 F. (C. 2d 91 A. 8th Cir. 1956). What- may ever be the status of right the to equal utilization of privately owned facilities, see generally Bell Mary- land, 378 U. S. 226, must be emphasized we that

[00] rH utilization equal right to concerned are here on by or or operated owned public of behalf of facilities con- or right this its deny the existence To the State. last dec- history of the deny stature is stitutional predicated power, federal role of ignore the ade, or to nondiscrimina- obtaining Amendment, Fourteenth do It is to violence facilities. to such tory access found understanding that an understanding, common Rights Act III IV of Civil in Titles expression 2000c 2000b, §§ S. C. 78 Stat. provi- facilities. Those state dealing with (1964 ed.), Amendment that the Fourteenth the view sions reflect facilities. of state equal utilization creates the provision with a titles preface those Congress did not creating the explicitly II5 to that comparable Title owned privately of certain utilization equal a specific assumed that Congress rightly facilities. unnecessary, of the was legislative declaration itself. arose from the Fourteenth Amendment In reversing the dismissal of the second Court’s District. I proof therefore hold that paragraph, numbered would charged at trial conspiracy the defendants paragraph in that will establish a of 241 with- violation regard proof out to whether is also state there causing law actively enforcement officers connived in Negroes by reports. arrests of means of false

II. requires 1 reach My scope view as to the 241 or question power of constitutional —whether pri- legislation indubitably designed punish entirely enjoyment persons “All shall be entitled to the full and facilities, privileges, advantages, goods, services, and accom any place public accommodation, as defined modations segregation ground race, section, on the without discrimination origin.” (a) color, religion, 2000a or national U. S. C. § (1964 ed.). of Four- to interfere with the exercise conspiracies

vate exer- permissible teenth Amendment constitutes Congress by 5 of the power granted § to cise by enforce, appropriate Amendment “to Fourteenth provisions of” the Amendment. legislation, expresses A of the members of Court6 majority Congress to laws empowers that enact today § view conspiracies to interfere with the exercise punishing all rights, of Fourteenth Amendment whether not state acting others law officers or under color state Although implicated conspiracy. are the Four- according to doc- itself, teenth Amendment established acting trine, “speaks to the State or to those under the legislation protecting rights cre- authority,” color of its Amendment, ated such as the to facilities, pun- of state need be confined to utilization conspiracies ishing in which state officers participate. Rather, Congress 5 authorizes to make laws reasonably necessary protect concludes are arising created under that Amendment; Congress fully empowered is thus pun- determine that private conspiracies ishment of interfering with ex- ercise of a necessary such is protection. its full It made that determination in enacting 241, see the Appendix in United Price, p. States v. post, and, 807, therefore legislation constitutional as applied to reach private conspiracy alleged in the num- second bered paragraph of the indictment.

I acknowledge that some of the decisions Court, this most notably an aspect of the Civil Bights Cases, 109 have declared Congress' power under majority The consists of the joining my Justices Brother Clark’s opinion and joining opinion. the Justices opinion of Mr. Justice Stewart applied construes §241 the second numbered paragraph require proof participation by active state officers alleged conspiracy opinion and that purport does not to deal question. with this

783 legislation “appropriate adoption to the 5 is confined § laws State prohibited . effects of . . correcting the for null, effectually them render acts, and thus to and State majority accept I not innocuous.” do void, and —and §of 5. interpretation today rejects of the Court —this provisions the power to enforce legislative reduces the It and it judiciary;7 that of the of the Amendment Amendment’s objective a far too attributes limited Four- §of 5 of the language Moreover, the sponsors.8 2 Fifteenth Amendment and of the Amendment teenth held in South recently we same, and virtually the are 326, Katzenbach, ante, that p. 301, at “[t]he Carolina v. 2 the involving in a applied case basic test to be in all cases con- the same as Amendment Fifteenth Congress with relation powers of cerning express the classic formu- The States.” powers the reserved the Marshall McCulloch by Chief Justice of that test lation adopted: was there 316, 421, Maryland, 4 Wheat. the let it be within legitimate, the end be “Let are which constitution, all means of the and scope end, adapted to that plainly are which appropriate, 7 likely agency more as the Congress, judiciary, was viewed not the be guarantees equality, and thus it could fully implement augment purpose of Amendment was presumed primary Framing James, judiciary. See Congress, power of Quest for (1956); Harris, The 184 Amendment of the Fourteenth to Enforce Congressional Power (1960); Frantz, Equality 53-54 Acts, Yale L. J. Against Private Amendment the Fourteenth (1964). 1353, 1356 Rights Civil in dissent Harlan said the first Mr. Justice As great perfectly well known Cases, S., 54: “It was at citizens, rights, of their equal enjoyment citizens danger to the legisla unfriendly altogether from State apprehended not was to be corporations and individuals hostile action tion, but from the intended, was presumed that is to be And it the States. authority power to meet Congress and 5], to clothe section [§ Price, post, p. 787, at 803- States v. danger.” See Appendix. letter with the consist but prohibited, are not which constitution, are constitutional.” spirit defines standard that this is also the to me that It seems 5 of the authority under congressional scope of Carolina v. Indeed, South Amendment. Fourteenth Virginia, parte Ex refers to approvingly Katzenbach involving the exercise 345-346, case S.U. § 5 of the Fourteenth congressional under power Maryland adopting McCulloch Amendment, as v. War Amendments.” for “each of the Civil formulation in 5 of proper perspective, its the Fourteenth Viewed positive grant legislative as a appears Amendment Congress exercise its in power, authorizing to discretion fashioning political to civil and equality remedies achieve deny Congress for one all citizens. No would that could legislation directing provide enact state officials to Negroes equal with access state parks to schools, other facilities owned or operated the State. Nor could it be Congress denied that has power punish to state officers who, excess of their authority and in vio- law, lation state conspire to threaten, harass and Negroes murder for attempting to use these facilities.9 And I can find no principle of federalism nor word of the Constitution denies Congress power, to determine in order adequately protect the right equal utilization of state facilities, it is also appropriate pun- ish other individuals —not state officers themselves and acting not in concert with state officers—who engage in the same brutal conduct for the misguided same purpose.10 9 Price, States post, v. p. 787. See United Screws v. United States, 325 91; U. S. Williams v. States, United 97; U. Monroe v.

Pape, 365 U. S. 167. 10Cf. Atlanta Motel v. United States, 258, applying the settled principle expressed in United Darby, States v. 312 U. S. 100, 118, power Congress over interstate commerce “ex-

III. pun- for legislation model certainly 241 is Section the exer- conspiracies to interfere ishing private facilities. of state utilization cise of rights Federal “with only general language It deals “in them protects rights” all Federal and with 387; Mosley, 238 U. S. States lump,” privilege “any right general in most terms protects or laws of the United secured ... the Constitution mark the has left it to the courts Congress States.” case-by-case determine on words, of those bounds is a fed- right purportedly threatened basis whether the con- may occur after determination right. eral That not have been may or it charged place has taken duct penumbra “a prior decisions; anticipated until decision none can know involved, which may be it is before may infraction occur made and has been brings wording plainly on such Reliance had.” vagueness. being for danger line of void close to the require- stringent scienter holds, Court as the But, a criminal statute 241 from as condemnation § ment saves con- proscribed of adequate notice the failing provide conspiracy, offense is gravamen of the duct.12 The criminal conduct making certain like statute therefore, commerce which so affect interstate to those activities intrastate tends regu- power Congress over it as to make or the exercise legitimate appropriate attainment of a means to the lation of them end ...” 11 States, 325 U. S., United in Screws v. Rutledge Mr. Justice at 130. 12 Lines, Inc. Boyce Motor Ante, pp. v. generally, 753-754. See Assn. States, American Communications 342; 337, United 342 U. S. Ragen, States Douds, United 412-413; 314 U. S. 382, v. 339 U. S. v. 27-28; Hygrade States, 19, 513, 524; Gorin United 312 U. S. v. Sherman, 497, 501-503; Omaechevarria v. Provision Co. v. 266 U. S. Idaho, 246 343, 348. U. S.

only “willfully,” requires proof spe- if of a § it is done 241 cific intent for conviction. We have construed require proof persons charged conspired the to act or in defiance, reckless of an announced rule disregard, making and definite. United right specific the federal Doug- Williams, States 70, 93-95 (opinion States, v. United las, J.); Screws 91, 325 U. S. 101-107 (opinion J.) predecessor the (involving Douglas, 242). S. U. C. Since this case reaches us the pleadings, there no occasion to decide now the whether Government will trial be able on to sustain burden proving requisite specific intent vis-a-vis freely to travel from State to State utilization of state James v. United Compare facilities. States, (opinion 221-222 J.). C. WarRen, any In event, may agree we well necessity discharge imperil that burden can effectiveness 241 where, case, pertinent is often consti- implied grant tutional must be from a of congres- sional power prohibition upon or a gov- the exercise of power. ernmental But since the limitation on the statute’s Congress’ effectiveness derives from failure to specificity define—with measure of rights en- —the compassed, remedy Congress is for to write a law Doug- paraphrase my without this defect. To Brother States, Screws v. las’ observation S., 325 U. to a companion at addressed statute with the same if shortcoming, Congress give desires to the statute more may scope, ways doing definite so. find

Case Details

Case Name: United States v. Guest

Court Name: Supreme Court of the United States

Date Published: Apr 4, 1966

Citation: 383 U.S. 745

Docket Number: 65

Court Abbreviation: SCOTUS