1372 THE YALE LAW JOURNAL [Vol. 73: 1353 nected with the powers or the duties of the National Government, is an attribute of National Citizenship and, as such, under the protection of and guaranteed by, the United States. . . . If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute and within the scope of the sovereignty of the United States.86 Here, there is a slight suggestion that Chief Justice Waite may be seeking a different compromise from the one Justice Bradley suggested between the two extremes which he had pointed out. Instead of letting Congress act on individuals when the state has failed to discharge its constitutional obligations, let Congress act on individuals when the right at stake is one which the nation, as such, has an interest in preserving. But this distinction is not brought forward as an interpretation of the fourteenth amendment or any other specific clause of the Constitution. Rather: The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.87 It almost seems that the Chief Justice prefers not to get his constitutional law too closely entangled with the text of the document. But it is clear that, if he does intend to substitute this new distinction for the one suggested by Justice Bradley, he does not do so in the name of the new amendments. So the essential question what are Congress' new powers, and upon whom may they be exercised remains unanswered. The Chief Justice also expressly takes the position that whatever may be the rights which belong to a United States citizen as such, those rights Congress may protect against individual acts of aggression. He finds that the counts on right to assemble and right to bear arms fail, because these rights are not guaranteed against individual invasion, and the count on the deprivation of life and liberty also fails, because the due process clause "adds nothing to the rights of one citizen as against another." But to reach a similar conclusion regarding the count for depriving the victims of "the full benefit of all laws and proceedings," he finds it necessary to observe that there is "no allegation that this was done because of the race or color of the persons conspired against." He also points out that because this allegation was omitted, no question arises under the Civil Rights Act of 1866. So it seems that, though the equal protection clause also does not "add anything to the rights which one citizen has under the Constitution against another," it is impliedly admitted that Congress might be able to add something to the rights of one individual against another, at least when a race motive is involved. The implications of Waite's opinion, then, are that private conduct not racially motivated does not constitute a violation of the due process clause or the equal protection clause. Therefore, when a federal statute makes it a crime for individuals to conspire to deprive citizens of their constitutional 86. 92 U.S. at 552-53. 87. Id. at 552. 1964] 14th AMENDMENT AND PRIVATE ACTS 1373 rights, an allegation that defendants conspired to deprive citizens of their lives and liberty without due process, or to deny them equal protection, is not sufficient to charge a violation of this statute. Further, the privileges or immunities of national citizenship may be protected against private aggression. But these rights do not include a general right of freedom of assembly, though they do include the right to assemble to discuss national issues. There is nothing here inconsistent with Bradley, except the view that the privileges or immunities clause does not protect fundamental rights. This difference does not touch Bradley's theory, since he, forewarned by Slaughterhouse, worked out his whole approach without relying on that clause. E. The 1880 Cases On the whole, the judicial history of the Reconstruction civil rights legislation is one of the progressive dismantling by the courts of most of what Congress had attempted. But there was one sharp interruption of this process in 1880 with a group of five decisions,88 predominantly nationalistic in tone, two of them dealing directly with the powers of Congress under the fourteenth amendment. In each, Justices Clifford and Field in dissent maintained that the police jurisdiction of the states is a sacred area in which Congress, even in the exercise of an express power, may not meddle. In each, the majority refused to consider the tenth amendment, or the nature of the federal system, as implying any limitations on the exercise of an express federal power. 90 In Ex parte Virginia 89 the Court upheld, in the first such holding, and the only one prior to 1945,90 a federal criminal statute passed under the authority of the fourteenth amendment. The measure involved was section four of the Civil Rights Act of 1875,91 which made it a crime to exclude any citizen, on grounds of race or color, from a state or federal jury. The Supreme Court upheld an indictment charging a state judge with having excluded Negroes in the selection of a state jury. It pronounced the act "fully authorized by the Constitution." Justice Field, dissenting, argued with respect to all three of the Reconstruction amendments that: .... The provision authorizing Congress to enforce them by appropriate legislation does not enlarge their scope, nor confer any authority which would not have existed independently of it. No legislation would be appropriate which should contravene the express prohibitions upon Congress. [T]he implied prohibitions . . . are as obligatory as the express prohibitions. The Constitution. . . contemplates the existence and independence of the States in all their reserved powers. . . . Legislation could not, therefore, be appropriate which, under pretence of prohibiting a State from doing certain things, should tend to destroy it, or any of its 88. Tennessee v. Davis, 100 U.S. 257 (1879); Strauder v. West Virginia, 100 U.S. 303 (1879); Virginia v. Rives, 100 U.S. 313 (1879); Ex parte Virginia, 100 U.S. 339 (1879); Ex parte Siebold, 100 U.S. 371 (1879). 89. 100 U.S. 339. 90. Screws v. United States, 325 U.S. 91 (1945). 91. 18 Stat. 335 (1875). 1374 THE YALE LAW JOURNAL [Vol. 73: 1353 essential attributes. To every State, as understood in the American sense, there must be, with reference to the subjects over which it has jurisdiction, absolute freedom from all external interference in the exercise of its legislative, judicial, and executive authority.92 From the presence of the due process clause in the fourteenth amendment, Justice Field argues that congressional enforcement was never intended. He maintains that congressional power to enforce such a clause would result in authority to prescribe the conditions on which property can be acquired and held, the means by which the liberty of the citizen should be protected, and a code of criminal procedure for the states. Hence: The existence of this clause in the Amendment is to me a persuasive argument that those who framed it, and the Legislatures of the States which adopted it never contemplated that the prohibition was to be enforced in any other way than through the judicial tribunals, as previous prohibitions upon the States had always been enforced.93 Justice Strong, speaking for the majority, replied to Justice Field's latter argument by calling attention to the congressional enforcement clause which appears at the end of each of the Reconstruction amendments: All of the Amendments derive much of their force from this latter provision. It is not said that the judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. . . . It is the power of Congress which has been enlarged. . . . Whatever legislation is appropriate, that is, adapted to carry out the objects the Amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against state denial or invasion, if not prohibited, is brought within the domain of congressional power.94 To Justice Field's argument from the independence of a state, “as understood in the American sense," Strong responded: ... Nor does it make any difference that such legislation is restrictive of what the State might have done before the constitutional amendment was adopted. [A] state cannot. . . deny to the general government the right to exercise all its granted powers, though they may interfere with the full exercise and enjoyment of rights she would have had if those powers had not been thus granted. Indeed, every addition of power to the general government involves a corresponding diminution of the governmental powers of the States. It is carved out of them . . . . * Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured.95 The last remark must be read in the context of the particular case. The issue between Field and the majority is whether Congress, to enforce the amend 92. 100 U.S. 339, 361-62. 93. Id. at 366. 94. Id. at 345-46 (emphasis added). 95. Id. at 346-47. 1964] 14th AMENDMENT AND PRIVATE ACTS 1375 ment, can go so far as to control one of the state's own instrumentalities. "Persons who are the agents of the State" are contrasted not with private individuals but with "the abstract thing denominated a State." The case does not involve and the opinions do not consider whether circumstances can ever arise in which congressional enforcement power may impinge directly on the conduct of private individuals toward each other. But the statements that it is congressional power, not judicial power, which has been enlarged, and that Congress, in the absence of a prohibition, can do anything adapted to carry out the objects of the amendments "and to secure to all persons the enjoyment of perfect equality of civil rights," suggest a very broad doctrine indeed. The latter phrase may or may not be read as limited by the expression "against state denial or invasion." But, if it is, state "denial," which is contrasted to "invasion," would seem to refer to a failure to afford affirmative protection. 96 In the scope of congressional power which its language would seem to imply, Justice Strong's opinion in Strauder v. West Virginia 9 is even broader. There a Negro had been indicted in the state court for murder. A state statute, enacted after the Reconstruction amendments, limited jury service to whites. Under these circumstances, the Court held that Section 641 of the Revised Statutes, providing for the removal of proceedings by defendants unable to enforce in a local tribunal rights granted them by the Civil Rights Bill, authorized the removal to federal court of the trial of this purely state offense. The Court held also that the statute, as thus construed, was a very appropriate one for the enforcement of the fourteenth amendment. Justice Strong for the Court argued that the common purpose of the thirteenth, fourteenth, and fifteenth amendments is to secure all civil rights to the Negro and that they must be interpreted in the light of that purpose. The fourteenth makes no attempt to enumerate the rights it protects, but uses language designedly general to make its coverage as comprehensive as possible. And, although its language is prohibitory, every prohibition implies rights and immunities, prominent among which is immunity from inequality of legal protection, either for life, liberty, or property. Here, again, the question of congressional legislation impinging on private idividuals is not before the Court and is not discussed. But the theoretical approach is that the amendment creates affirmative rights in individuals, not merely restraints upon the states. And the Court expressly takes the view, of the utmost importance for this question, that the form and manner of the protection to be provided are questions of legislative discretion for Congress. The juxtaposition of this case with Virginia v. Rives 97 provides an interesting clue to the direction of the Court's thinking at this point. As in the Strauder case, the defendant was charged with murder and sought to remove his case to the federal court. His petition for removal alleged that, although Negroes were eligible for jury service by state law, no Negroes had ever been 96. 100 U.S. 303 (1879). 97. 100 U.S. 313 (1879). 1376 THE YALE LAW JOURNAL [Vol. 73: 1353 chosen for jury services in the state; that all members of the venire were white; that he had moved to have a venire composed one-third of Negroes selected, and this motion had been refused; that he was charged with the murder of a white man, and that feeling in the community was so high that a trial by an all-white jury could not be fair and impartial. The Court decided that all of this did not add up to a case for removal under the statute. It limited the statute to cases in which the defendant could not secure his rights because the state law itself was unfavorable. The statute left other cases of denials of equal rights by state courts to the revisory power of the Supreme Court. This is expressly a construction of the removal statute, not of the Constitution. The Court points out that the reach of the statute is not as broad as that of the amendment and finds it unnecessary to consider whether a removal statute broad enough to remove a case merely because of a state court's discriminatory application of the law would be constitutional. The aspect of the case which relates it to Strauder is this statement: But when a subordinate officer of the State, in violation of State law. undertakes to deprive an accused party of a right which state law accords him . . . it ought to be presumed the court will redress the wrong.9 98 The idea that it must be presumed that the state will discharge its obligations reappears frequently in the cases. Thus, in Neal v. Delaware 99 the state statute, enacted in 1848, confined jury service to electors, and the state constitution, adopted in 1831, confined the suffrage to whites. But it was held that this did not make a case within the rule that there is a right of removal where the discrimination is on the face of the law. The state constitution must be understood as having been automatically amended by the effect of the fifteenth amendment in striking the word "white" from its suffrage sections. The Court remarked: The presumption should be indulged, in the first instance, that the State recognizes, as is its plain duty, an amendment of the Federal Constitution, from the time of its adoption, as binding on all its citizens and every department of its government, and to be enforced, within its limits, without reference to any inconsistent provisions in its own Constitution or statutes.1 100 By the presumption in Neal and Rives, it is clear that removal in the Strauder case was available only because the state statute had been passed after the amendment. Thus the advance presumption that a state will always obey the federal Constitution had been rebutted in what is perhaps the only way such a presumption could be rebutted: the state had officially announced its advance intentions in incontrovertible form. In Ex parte Siebold,101 which was decided contemporaneously with the Virginia, Rives, and Strauder cases, the fourteenth amendment was not in 98. Id. at 321-22. 99. 103 U.S. 370 (1881). 100. Id. at 389-90. 101. 100 U.S. 371 (1879). |