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FEDERAL POWER TO PUNISH INDIVIDUAL CRIMES UNDER THE FOURTEENTH
AMENDMENT: THE ORIGINAL UNDERSTANDING

(By Alfred Avins)

The recent companion cases of United States v. Guest1 and United States v. Price have raised the question of what power Congress has to punish crimes committed by one individual against another. This question has been of considerable public interest as a result of the murders of several northern "civil rights" workers in southern states which have gone unsolved, and other acts of violence in recent years which, to a greater or lesser extent, have been traceable to racial tensions.

In the Price case, a unanimous United States Supreme Court held that private parties who conspired with public officials to murder three persons were equally acting under color of law with the officials in depriving the dead persons of life and liberty without due process of law in violation of the Fourteenth Amendment, and hence could be punished by federal law enacted to enforce that amendment. In the Guest case, on the other hand, there were four different opinions, some of which found a rather tenuous "state action" basis while others deemed it unnecessary. However, obiter dicta in the opinions of at least six justices appears to indicate that, to some extent at least, the majority has obliterated the "state action" requirement of the Fourteenth Amendment for the permissible exercise of congressional power, by holding that private conspiracies or violence designed to deter Negroes from exercising alleged Fourteenth Amendment rights may be punished by federal legislation enacted pursuant to Section Five of that amendment as an enforcement of the Equal Protection Clause. It is noteworthy that, unlike several recent cases which have largely ignored legislative history in construing the Fourteenth Amendment, the opinions in the Guest and Price cases accept the relevancy of original understanding by the Congress, and the latter appends a copious quotation from the remarks of one of the reconstruction senators. Since the Court itself has accepted the hypothesis that the original understanding of the framers is controlling, an inquiry as to what that understanding was conforms strictly with the Court's own premises.

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The purpose of this article is to examine the original understanding of the framers and to determine whether these cases, and particularly the Guest case, accurately reflects that understanding insofar as it holds that the federal government may punish crime pursuant to the Fourteenth Amendment, even though that crime has not been committed under state authority.

2. THE FOURTEENTH AMENDMENT DEBATES

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The Equal Protection Clause has its genesis in the celebrated Hoar incident of ante-bellum days. As a result of a conspiracy to incite an insurrection of slaves, South Carolina pased a law which forbade freed Negroes, who were looked on as natural leaders of slave revolts, from entering the state, and required the imprisonment of Negro sailors on ships entering its ports. In November, 1844, former Representative Samuel Hoar, a leading Massachusetts lawyer, was sent by that state's officials to South Carolina to test the constitutionality of the law in the federal courts. His arrival caused great public excitement, and he was threatened with personal violence. The state authorities refused, or expressed the inability to protect Hoar against mob violence, and on December 5, 1844, the South Carolina legislature passed a resolution expelling him from the state. He was therefore forced to leave without bringing his suit. The incident caused great indignation in the North, and constituted a constant subject of reproach by northern members of the Congress against the South." Representative John A. Bingham, the Radical Republican lawyer from Ohio who drafted the first section of the Fourteenth Amendment, gave as one of the reasons for introducing his amendment that the guarantee of privileges and immunities in Article 4, Section

186 Sup. Ct. 1170 (1966).

286 Sup. Ct. 1152 (1966).

See, eg., Harper v. Virginia State Board of Elections, 86 Sup. Ct. 1079 (1966). See Cong. Globe, 31st Cong., 1st Sess., app. 1675 (1850). Congressional Globes will hereinafter be cited by congress, session, page, and year, viz.: 31 (1) Globe app. 1675 (1850). 513 Encyclopaedia Britannica 542 (11th ed. 1910); Biographical Directory of the American Congress, 1774-1927, p. 1103 (1928).

See, e.g., 30 (2) Globe 418-19 (1849): 31 (1) Globe app. 123-24, app. 288-29, 1663 (1850); 33 (1) Globe 1154-55, app. 575, 1012-13, 1556 (1854); 34 (1) Globe 1598 (1856).

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2 of the original Constitution "was utterly disregarded in the past by South Carolina when she drove with indignity and contempt and scorn from her limits the honored representative of Massachsettts, who went thither upon the peaceful mission of asserting in the tribunals of South Carolina the rights of American citizens."

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The brief for the Justice Department in the Guest case asserted that the Thirty-Ninth Congress which proposed the Fourteenth Amendment had before it testimony of various persons about private as well as official persecution of white southern unionists, northerners in the South, and Negroes. The brief therefore concluded that the "inference is compelling that not only the Joint Committee, but Congress as a whole, and also the ratifying legislatures, regarded the Fourteenth Amendment as empowering Congress to deal effectively with the atrocities depicted in the testimony."" Apparently, the majority of the Supreme Court agreed with the Justice Department that this meant that Congress would be empowered to deal directly with private individuals committing crimes against other persons, without state sanction. The historical evidence does not, however, sustain this point of view.

It is true that evidence of crime in the South, of a political or racial nature, was widespread, in part brought on by disorganization and virtual anarchy consequent on the termination of the Civil War and the resulting collapse of economic and political institutions. The Justice Department's brief has cited testimony before the Joint Committee on Reconstruction 10 and the Schurz report," both of which were widely circulated. Although much of this material was hearsay, nevertheless the Republicans in Congress believed, or professed to believe it, and the material is therefore of value in construing congressional intent.12

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In addition, there were a considerable number of references on the floor of Congress to crime in the South. Even before the termination of the war, Representative William D. Kelley, a Radical Republican lawyer from Pennsylvania, warned the House that the southern state governments, if left on their own. would do nothing to protect the white loyalists or Negroes from private violence." Senator Henry Wilson, a Massachusetts Republican, attacked murders and outrages being committed on freedmen to enforce the "black codes," while even Senator Reverdy Johnson, a Maryland Democrat and former Attorney-General of the United States, admitted "to a certain extent [the report] is true. . . ." Representative Thomas D. Eliot, a Massachusetts Republican, said that houses were being burned and freedmen murdered in Mississippi." Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee and a former state supreme court justice of Illinois, who was virtual leader of the Senate Republicans in matters relating to reconstruction, read dispatches that murder of unionists and Negroes were imminent in the South, and asserted that "the negro really has no protection afforded him either by the civil authorities or judicial tribunals of the State." Wilson added that these murders were going unpunished." Representative Sidney Perham, a Maine Republican, cited the Schurz Report, and asserted that all the reports from the South indicated that loyalists, both white and colored, were being "murdered in cold blood," and that northerners and federal officers were being intimidated by threats of violence and murdered. He added that these murders were going unpunished, and that in Kentucky the state courts, instead of protecting unionists, were persecuting them at the instance of rebels.1

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Towards the end of the session, Representative William Windom, a Minnesota Republican, made reference to southerners' "violent efforts to drive out the few Union people who remain among them; their murders of Unionists, and

739 (1) Globe 158 (1866).

8 Brief for appellant, pp. 35-36, in United States v. Guest, supra, n. 1.

Id. at 37.

10 Id. at 36.

11 S. Ex. Doc. No. 2, 39th Cong., 1st Sess. (1865).

12 But see the doubts expressed by Representative Henry J. Raymond, editor of the New York Times in 39 (1) Globe 40 (1866).

13 38 (2) Globe 289 (1865).

14 39 (1) Globe 40 (1866).

15 Id. at 517.

10 Id. at 941.

17 Id. at app. 140. To the same effect, see 39 (2) Globe 103-04 (1866).

18 39 (1) Globe 2082-83 (1866).

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destruction of their dwellings, schoolhouses, and churches. . . ." Representative George W. Julian, a Radical Republican from Indiana, declared:

"A feeling scarcely less intolerant is evinced toward the few loyal white men in these States, who in many localities are living in constant dread of violence and murder, and are frequently waylaid and shot. Quite recently I have received a letter from a gentleman of intelligence and worth in one of the Southern States, in which he says that he and his friends and neighbors, who have been hunted in the mountains like deer all through the war because they refused to take up arms against their country, having had their houses plundered or burned, their property destroyed, and themselves reduced to beggary, are still living in constant dread of assassination; and he begs me, if possible, to procure for them from the Secretary of War transportation to the North." 20

Somewhat later, Senator Oliver P. Morton, an Indiana Republican, stated: "*** so far from answering the purpose for which governments are intended, they [the southern Johnson governments] failed to extend protection to the loyal men, either white or black. The loyal men were murdered with impunity; and I will thank any Senator upon this floor to point to a single case in any of the rebel States where a rebel has been tried and brought to punishment by the civil authority for the murder of a Union man. Not one case, I am told, can be found." "

Instances of murder and assault against freedmen, and the burning of schoolhouses and other buildings which they were using, was given by the House Committee on Freedmen's Affairs as one of the reasons for prolonging the life of the Freedmen's Bureau." The Joint Committee on Reconstruction, which proposed the Fourteenth Amendment, justified it, inter alia, because of the acts of cruelty, oppression, and murder [of freedmen], which the local authorities are at no pains to prevent or punish," 23 and because of the persecution of southern white loyalists.

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The Department of Justice was therefore correct in asserting, and the Supreme Court was not in error in accepting, the proposition that the Fourteenth Amendment was framed to add a measure of protection to persons who would become the victim of crime. The Department's error and the Court's misapprehension, lies in misconceiving what remedy was provided by the Thirty-Ninth Congress in that amendment under the Equal Protection Clause. This point will now be examined.

3. THE DRAFTS OF THE FOURTEENTH AMENDMENT

On February 26, 1866, Bingham reported, for the Joint Committee on Reconstruction, a proposed constitutional amendment which, in altered form, was later to become all of the first section of the Fourteenth Amendment except for the declaration as to citizenship. This proposal stated:

"The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States, equal protection in the rights of life, liberty, and property." "

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Bingham pointed out that this proposal was simply an amalgam of the Privileges and Immunities Clause contained in Article 4, Section 2, and the Fifth Amendment, coupled with a grant of power to Congress to enforce them. Bingham added that while these obligations already rested on the states, state officers had habitually disregarded them.25

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About seven weeks earlier, Bingham had protested that northern anti-slavery men were unsafe if they went South. He demanded security from the South for the future. He said that the guarantees of the existing Privileges and Immunities Clause were not enforced, and were disregarded. He added:

"I propose, with the help of this Congress and of the American people, that hereafter there shall not be any disregard of that essential guarantee of your Constitution in any State of the Union. And how? By simply adding an amendment to the Constitution to operate on all the States of this Union alike, giving

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to Congress the power to pass all laws necessary and proper to secure to all persons which includes every citizen of every State their equal personal rights; and if the tribunals of South Carolina will not respect the rights of the citizens of Massachusetts under the Constitution of their common country, I desire to see the Federal judiciary clothed with the power to take cognizance of the question, and assert those rights by solemn judgment, inflicting upon the offenders such penalties as will compel a decent respect for this guarantee to all the citizens of every state." "

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Bingham's amendment was immediately attacked for giving Congress excessive power. Representative Andrew J. Rogers, a New Jersey Democrat and a minority member of the Joint Committee on Reconstruction, attacked it for centralizing the government."

The longest attack came from Representative Robert S. Hale, an ex-judge and New York Republican. Hale asserted that the proposal gave Congress power to supplant state civil and criminal codes. He rejected the suggestion of Representative Thaddeus Stevens that the provisions only gave Congress the right to interfere when state laws were unequal, and asserted that Congress would directly be able to assure protection to one individual against acts of another individual. Hale attacked the amendment for centralizing power in the hands of the federal government."

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Representative Thomas T. Davis, a New York Republican, echoed Hale's fears. He objected that the proposed amendment "is a grant for original legislation by Congress." Still a third New York Republican lawyer, Representative Giles W. Hotchkiss, asserted in opposition to the proposal that it gave Congress power to establish uniform laws for the protection of life, liberty, and property. Hotchkiss stated that he would be glad to support an amendment prohibiting state discrimination, but he opposed the Bingham draft because he, too, did not want Congress to have any such direct power. Representative Roscoe Conkling, a New York Republican lawyer who was a member of the Joint Committee on Reconstruction, likewise opposed the proposal as being too radical.

The view that the Bingham proposal gave Congress direct power to legislate so as to punish individual crimes and conspiracies is supported by a statement of one of its supporters who was not a lawyer. The following colloquy occurred between Representative Hiram Price, an Iowa Regublican,and Representative Edwin Wright, a New Jersey Democrat, which shows clearly that in Price's view the equal protection portion of the Bingham proposal would have given Congress power to punish violence directed at preventing persons from exercising their federal constitutional rights:

"Mr. PRICE. *** I have learned within the last two weeks from a man who went from the state of Illinois into the State of Mississippi with seven companions, making eight in all, to work in a machine shop, and that there came back only six of them, the other two having been murdered between the shop and their boarding house. * * *

"Mr. WRIGHT. I rise to a question of order. I insist that the gentleman must confine himself to the subject under discussion. We are not trying murder cases.

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"Mr. PRICE. I say, sir, that the intention of the resolution before the House is to give the same rights, privileges, and protection to the citizen of one State going into another that a citizen of that State would have who had lived there for years.

"The SPEAKER. That is clearly in order. *** The Chair sustains the gentleman from Iowa, as his remarks are clearly in order.

"Mr. PRICE. *** Now, sir, if that is the intention of the resolution, if it is designed to protect a citizen of Pennsylvania, New York, Iowa, or any other free State in going into a southern State * * * then I am most decidedly in favor of it. ***"

27 Id. at 158.

28 See, generally, Tansill, Avins, Crutchfield and Colegrove, The Fourteenth Amendment and Real Property Rights, in Open Occupancy vs. Forced Housing Under the Fourteenth Amendment, 68, 77-80 (Avins ed. 1963).

239 (1) Globe app. 133 (1866).

30 Id. at 1063-64.

1 Id. at 1065. 32 Id. at 1087. Id. at 1095. 24 Id. at 1066.

In urging his amendment, Bingham declared that although the federal government could protect American citizens abroad, it was powerless to protect them at home.35 Instead, "citizens must rely upon the State for their protection."" However, Bingham did not assert any desire to punish individual crimes directed at preventing the exercise of constitutional rights. Quite the contrary, through the maze of his high-flown rhetoric runs the aim of punishing state officials who refuse to protect citizens, rather than punishing private individuals. For example, Bingham asked how a penal prohibition of state denial of equal protection could impair states' rights if all persons were entitled to such protection. He also added that federal courts did not have authority to redress denial of equal protection "which is being practiced now in more States than one of the Union under the authority of State laws ***." Bingham asserted that without his proposal the state legislatures might break their oaths to support the Constitution and pass unconstitutional acts, as they had done in the past. He said:

"The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question and the whole question. *** if they [state legislatures] conspire together to enact laws refusing equal protection to life, liberty. or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellowmen." 38

Bingham protested that if southerners regained control of their state gov ernments they would pass laws of banishment and confiscation and imprisonment and murder which prevailed in the South during the Civil War. He observed that there was "no law anywhere upon our statute-books to punish penally any state officer for denying in any State to any citizen of the United States protection in the rights of life, liberty, and property." " He added: "where is the express power to define and punish crimes committed in any State by its official officers in violation of the rights of citizens and persons as declared in the Constitution?" 40 The following colloquy then occurred:

"Mr. HALE. I desire *** to ask him, as an able constitutional lawyer, whether in his opinion this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property. subject only to the qualification that that protection shall be equal.

"Mr. BINGHAM. I believe it does in regard to life and liberty and property as I have heretofore stated it; * * *

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"Mr. HALE. The gentleman misapprehends my point, or else I misapprehend his answer. My question was whether this provision, if adopted, confers upon Congress general powers of legislation in regard to the protection of life, liberty. and personal property.

"Mr. BINGHAM. It certainly does this: it confers upon Congress power to see to it that the protection given by the laws of the States shall be equal in respect to life and liberty and property to all persons."

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At the instance of the Republican House leadership, the Bingham proposal was indefinitely postponed." It was never reintroduced, but rather it was redrafted into the form of the present amendment. Representative James A. Garfield, the Ohio Republican lawyer who later became President, observed several years later that the Bingham draft first introduced was postponed at the instance of the House leadership because "it became perfectly evident that the measure could not command a two-thirds vote of Congress, and for that reason the proposition was virtually withdrawn." Garfield further pointed out:

"Now, let it be remembered that the proposed amendment was a plain, unambiguous proposition to empower Congress to legislate directly upon the citizens of all the States in regard to their rights of life, liberty, and property.

35 Id. at 1090.

36 Id. at 1093. 37 Id. at 1089.

38 Id. at 1090.

30 Id. at 1093.

40 Ibid.

41 Id. at 1094.

42 Ibid. (Rep. Conkling), id. at 1095.

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