ÀҾ˹éÒ˹ѧÊ×Í
PDF
ePub

Even so vigorous a proponent of civil rights as Mr. Justice Douglas, writing for the majority in Screws v. United States ((1945) 325 U. S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031), held that—

The fact that a prisoner is assaulted, injured, or even murdered by State officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution, or laws of the United States.

It is therefore clear beyond all question that S. 900 cannot be sustained under the 14th amendment as a due-process or equal-protection measure. It only remains to be seen whether the bill could be upheld as an exercise by Congress of its powers to protect federally secured rights.

In United States v. Cruikshank ((1876) 92 U. S. 542, 23 L. Ed. 588) it was said:

We have in our political system a Government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has ctiizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other.

The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.

In the Slaughter House cases ((1873) 16 Wall. 36, 21 L. Ed. 394), which was the first decision construing the 14th amendment, it was beld that the amendment's reference to "privileges and immunities of citizens of the United States" only operated as a prohibition against State encroachment on rights and privileges which devolved upon a citizen by virtue of his status as a citizen of the United States, as distinguished from his status as a citizen of the State. In so holding, the Court declared:

Of the privileges and immunities of the citizens of the United States, and of the privileges and immunities of the citizens of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

Moreover, it was determined that it was not the intention of Congress in submitting, and the intention of the people in ratifying, "to transfer the security and protection of all the civil rights which we have mentioned from the States to the Federal Government" (id., 21 L. Ed at p. 409). As stated by the Court:

But, however, pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with power for domestic and local government, including the regulation of civil rights, the rights of person and of property, was essential to the perfect working of our

complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

In distinguishing between the privileges and immunities that arise from State citizenship, and those that arise from national citizenship, the Court gave as examples of the latter, the rights "to come to the seat of Government to assert any claim he may have upon that Government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions"; the "right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States"; the right "to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government"; the "right to peaceably assemble and petition for redress of grievances"; the "privilege of the writ of habeas corpus"; the right to "use navigable waters of the United States, however they may penetrate the territory of the several States, and all rights secured to our citizens by treaties with foreign nations"; and the right of a citizen of the United States to become a citizen of a State merely by residing therein.

On the other hand, the rights recognized by the courts as arising from relation of the citizen to the State, are much broader, to wit: "protection by the Government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may prescribe for the general good of the whole."

In United States v. Powell (CC. Ala. 1907, 151 F. 648), the defendant had been indicted under sections 5508 and 5509 of the Revised Statutes, the indictment alleging that the accused had participated in a mob which overpowered the sheriff of Huntsville, Ala., and lynched a Negro prisoner being held in custody by the sheriff on charges of murder. It was further alleged in the indictment that such action. deprived the deceased of the "right, privilege, and immunity of a citizen of the United States" to have his case tried regularly in the courts according to prevailing modes in conformity to due process.

The circuit court reasoned that it was well within the power of Congress to punish individuals who committed such acts, on the ground that since the 14th amendment required the States to afford due process, which unquestionably is not satisfied by execution without trial, action by private individuals, which prevented the States from doing their constitutional duty was, in effect, interference with the Constitution's command, and hence the proper subject of congressional action. However, the court noted that what was considered obiter dictum by the Supreme Court in Hodges v. United States ((1906) 209 U. S. 1, 51 L. Ed. 65, 27 S. Ct. 6), would require a different result, and hence determined that the appropriate course would be to sustain a demurrer to the indictment and give the Supreme Court the opportunity of adopting or rejecting its statements in the Hodges case, rather than for it, an inferior court, to hold that the Supreme Court's language had gone further than the facts there justified.

On appeal, the Supreme Court affirmed in a per curiam opinion which merely stated:

The judgment is affirmed on the authority of Hodges v. United ***.

United States v. Powell ((1909) 212 U. S. 564, 53 L. Ed. 653, 29 S. Ct.690).

This disposition of the Powell case puts at rest the argument that the "right to be free from lynching is a right of all persons" and "citizens" as declared in section 4 of S. 900. The broad assertion in section 4 that "such right *** accrues by virtue of such citizenship" is in direct conflict with the Powell decision, and constitutes defiance of the Supreme Court from the same quarter which delights in accusing others of such action.

S. 901 would outlaw the poll tax as a condition of voting in a national election. Here, however, unlike S. 900, the draftsman apparently was aware of the distinction between privileges and immunities of a citizen of the State and those of a citizen of the United States. In Breedlove v. Suttles ((1937) 302 U. S. 277, 82 L. Ed. 252, 58 S. Ct. 205), it was held that no privilege or immunity attributable to national citizenship was violated by a poll-tax requirement.

It was expressly recognized that there is nothing evil or unusual in this form of taxation, for it was there said:

Levy by the poll has long been a familiar form of taxation, much used in some countries and to a considerable extent here, at first in the Colonies and later in the States (id., p. 281).

While Georgia repealed its poll-tax law in 1945 (Ga. Laws 1945, p. 129), on the general issue of States rights, I would preserve the rights of the States to conduct elections as they may deem advisable.

While our constitution still authorizes the legislature to levy a poll tax (art. VII, sec. 1, par. II; Code Ann., sec. 2-5402 [4]), so far as I know, there is no likelihood in Georgia of such legislation but in view of the rising costs of government and the tendency of the Supreme Court to dry up sources of State taxation, it may some day in the not too distant future become necessary for all States to levy such taxes to defray election expenses. In view of the Supreme Court's decision in United States v. Classic ((1941) 313 U. S. 299, 314, 85 L. Ed. 1368, 1377, 61 S. Ct. 1031), I will concede that the right to vote for a national officer is one derived from the Constitution and hence the qualifications of voters, etc., may be dealt with by appropriate congressional action under article I, section 2, of the Federal Constitution, providing for the election of Congressmen. This authority, of course, is separate and distinct from Congress' power under the 14th and 15th amendments, for, under the latter, Congress would not be empowered to prohibit a poll tax, since the Supreme Court held in the Breedlove case, supra, that such a tax does not deny equal protection, even when certain classes of citizens, such as women and young and old people, are exempted therefrom.

However, the fact that Congress may possess the power as to elections for national officers does not mean that it would be proper or desirable that it be exercised. Congress has always depended upon the States to conduct elections for National as well as State offices, and so long as the expense and responsibility are placed on the States, they should not be deprived of one of the possible means of paying there for. At a time when national income is at an all-time high, it is difficult to see how the small exaction represented by a poll tax could prevent anyone who so desires from voting. In any event, the tax falls on everyone alike, and if it be said that those with lower incomes are less

79992-56-21

able to absorb the costs, I submit that Congress had best clean up its own backyard first, by reducing the almost prohibitive costs of litigation in the Federal courts. Also, the jurisdictional amount requirement is a far more glaring discrimination against the average and lower income litigants, whose claims seldom rise to the $3,000 class. These practical considerations make it evident to me that this proposed bill is nothing less than another political gesture toward the pressure groups accustomed to insistent wailing about the poll tax.

S. 902, proposed to elevate the civil-rights section of the Department of Justice to the status of a Civil Rights Division, and provides for an additional Assistant Attorney General to direct its activities. In the report accompanying the bill, it is said that this will give the civil-rights enforcement program "additional prestige, power, and efficiency which it now lacks."

In view of Mr. Brownell's own admission that civil-rights complaints are at an all-time low, it seems difficult at this time to justify expanding this phase of the Justice Department's activities. This very fact will encourage meddling and baseless suits by the new board of bureaucrats who will surely perceive that they must stir up litigation to justify the expense of their existence.

In addition, as mentioned in the report, it is anticipated that additional personnel will be required should other proposed civil-rights measures be enacted, this apparently having reference to the bills which would confer unheard-of injunctive powers on the Attorney General. Reduced to simple language, the police state must have an adequate supply of storm troopers to keep the States and their citizens under constant fear of being enjoined, sent to jail, called up before some commission in far-off places in a hostile surrounding, and kept in a general state of intimidation to appease the vociferous minorities which by their militant organizations have now apparently wrested control of our Government from the people.

This brings me to S. 903, which relates to voting. The first provision amends the Hatch Act (18 U. S. C. A. 594), by adding to the section penalizing attempts to interfere with voting by anyone in a national election, the words "primary election," so as to include same within the section's coverage.

A similar amendment is made with respect to title 8, United States Code, section 31, now codified as title 42, United States Code Annotated, section 1971. This section is also amended, apparently in an attempt to give its application to title 18, United States Code Annotated, section 242, the criminal provision, and title 42, United States Code Annotated, section 1983, the section conferring a civil cause of action for damages. Laying aside the fact that no need for these changes have been shown, the type of legislative drafting here utilized is to be frowned on. If sections 242 of title 18 and 1983 of title 42 are to be amended, they should be amended directly, rather than by adding a catchall clause to the end of another section which makes it almost impossible to predict how these two sections will be interpreted. The section here amended directly, title 42, United States Code Annotated, section 1971, was intended only to be a declaration of principle, which would invalidate any State law in conflict therewith, while title 18, United States Code Annotated, section 242, was intended to prescribe a criminal penalty, and title 42, United States Code Annotated, section 1971, was intended to give a civil cause of action.

However, laying aside all other questions, the amendment here sought to be added is not necessary. In Terry v. Adams ((1953) 343 U. S. 461, 468, 97 L. Ed. 1152, 1160, 73 S. Ct. 809), the Supreme Court has already construed title 42, United States Code Annotated, section 1981, as being applicable to primaries, in a decision which is recognized as going as far as possible in protecting the right to vote without amending the Constitution. Perhaps the Congress, like Mr. Justice Minton and I, believe the Court's decision to have gone too far, but it is strange for Congress, many Members of which have expressed the greatest respect for even the more questionable of the Court's opinions, to now manifest doubt as to the Court's ability by legislation to uphold its decision. Traditionally, under our system of government, the Court decisions have followed the legislation, but apparently some believe that procedure to be old fashioned, and that now, the courts are empowered to legislate initially to be then followed by congressional recognition in the form of statutory enactment.

The most disturbing part of S. 903, however, is the last, which gives the Attorney General power to institute injunction suits on his own election, and without regard to whether the party whose rights are affected actually desires such litigation. Such a procedure is contrary to every recognized principle of English and American jurisprudence. In McCabe v. Atchison, T. & Santa Fe R. Co. ((1914) 235 U. S. 151, 162, 59 L. Ed. 169, 174, 35 S. Ct. 69), it was said:

It is an elementary principle that, in order to justify the granting of this extraordinary relief, the complainant's need of it, and the absence of an adequate remedy at law, must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to to the complainant-not to others—which justified judicial intervention.

This salutory principle-that one cannot litigate the constitutional rights of another-has received frequent application in the courts, particularly in the field of so-called discrimination cases. (See Missouri ex rel Gaines v. Canada (1938) 305 U. S. 337, 351, 83 L. Ed. 208, 214, 59 S. Ct. 232; Brown v. Board of Trustees (CA 5th 1951) 187 F. 2d 20, 25; Cook v. Davis (CA 5th 1949) 178 F. 2d 595, 599; Williams v. Kansas City (D. C. Mo. 1952) 104 F. Supp. 848, 857 (7, 8); Brown v. Ramsey (CA 8th 1950) 185 F. 2d 225.)

Constitutional rights have always been considered vital, personal rights, and to permit others to come into court asserting them can only result in their cheapening and the worsening of Federal-State relations.

When Attorney General Brownell testified before the House Judicial Committee on April 10, 1956, he attempted to justify the grant of injunctive powers on the ground that criminal proceedings always produce strong public indignation and promote friction. He stated:

And another point. Criminal prosecution for civil-rights violations, when they involve State or local officials, as they often do, stir up an immense amount of ill feeling in the community and inevitably tend to cause very bad relations between State and local officials on the one hand, and the Federal officials responsible for the investigation and prosecution on the other. And we believe that a great deal of this could be avoided, and should be avoided if Congress would authorize the Attorney General to seek preventive relief from the civil courts in these civil-rights cases.'

10

10 See transcript of hearing, p. 15.

« ¡è͹˹éÒ´Óà¹Ô¹¡ÒõèÍ
 »