State Action

In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts,2200 and to provide criminal2201 and civil2202 liability for state officials and agents2203 or persons associated with them2204 who violate protected rights. These statutory measures designed to eliminate discrimination “under color of law”2205 present no problems of constitutional foundation, although there may well be other problems of application.2206 But the Reconstruction Congresses did not stop with statutory implementation of rights guaranteed against state infringement, moving as well against private interference.

Thus, in the Civil Rights Act of 18752207 Congress had proscribed private racial discrimination in the admission to and use of inns, public conveyances, theaters, and other places of public amusement. The Civil Rights Cases2208 found this enactment to be beyond Congress’s power to enforce the Fourteenth Amendment. The Court observed that § 1 prohibited only state action and did not reach private conduct. Therefore, Congress’s power under § 5 to enforce § 1 by appropriate legislation was held to be similarly limited. “It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment.”2209 The holding in this case had already been preceded by United States v. Cruikshank2210 and by United States v. Harris2211 in which the Federal Government had prosecuted individuals for killing and injuring African-Americans. The Amendment did not increase the power of the Federal Government vis-a-vis individuals, the Court held, only with regard to the states themselves.2212

Cruikshank did, however, recognize a small category of federal rights that Congress could protect against private deprivation, rights that the Court viewed as deriving particularly from one’s status as a citizen of the United States and that Congress had a general police power to protect.2213 These rights included the right to vote in federal elections, general and primary,2214 the right to federal protection while in the custody of federal officers,2215 and the right to inform federal officials of violations of federal law.2216 The right of interstate travel is a basic right derived from the Federal Constitution, which Congress may protect.2217 In United States v. Williams,2218 in the context of state action, the Court divided four-to-four over whether the predecessor of 18 U.S.C. § 241 in its reference to a “right or privilege secured . . . by the Constitution or laws of the United States” encompassed rights guaranteed by the Fourteenth Amendment, or was restricted to those rights “which Congress can beyond doubt constitutionally secure against interference by private individuals.” This issue was again reached in United States v. Price2219 and United States v. Guest,2220 again in the context of state action, in which the Court concluded that the statute included within its scope rights guaranteed by the Due Process and Equal Protection Clauses.

Because the Court found that both Price and Guest concerned sufficient state action, it did not then have to reach the question of § 241‘s constitutionality when applied to private action that interfered with rights not the subject of a general police power. But Justice Brennan, responding to what he apparently intepreted as language in the Court’s opinion construing Congress’s power under § 5 of the Fourteenth Amendment to be limited by the state action requirement, appended a lengthy statement, which a majority of the Justices joined, arguing that Congress’s power was broader.2221 “Although the Fourteenth Amendment itself . . . ‘speaks to the State or to those acting under the color of its authority,’ legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, § 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection.”2222 The Justice throughout the opinion refers to “Fourteenth Amendment rights,” by which he meant rights that, in the words of 18 U.S.C. § 241, are “secured . . . by the Constitution,” i.e., by the Fourteenth Amendment through prohibitory words addressed only to governmental officers. Thus, the Equal Protection Clause commands that all “public facilities owned or operated by or on behalf of the State,” be available equally to all persons; that access is a right granted by the Constitution, and § 5 is viewed “as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens.” Within this discretion is the “power to determine that in order adequately to protect the right to equal utilization of state facilities, it is also appropriate to punish other individuals” who would deny such access.2223

The Court, however, ultimately rejected this expansion of the powers of Congress in United States v. Morrison.2224 In Morrison, the Court invalidated a provision of the Violence Against Women Act2225 that established a federal civil remedy for victims of gender-motivated violence. The case involved a university student who brought a civil action against other students who allegedly raped her. The argument was made that there was a pervasive bias against victims of gender-motivated violence in state justice systems, and that the federal remedy would offset and deter this bias. The Court first reaffirmed the state action requirement for legislation passed under the Fourteenth Amendment,2226 dismissing the dicta in Guest, and reaffirming the precedents of the Civil Rights Cases and United States v. Harris. The Court also rejected the assertion that the legislation was “corrective” of bias in the courts, as the suits are not directed at the state or any state actor, but rather at the individuals committing the criminal acts.2227

Footnotes

2200
Section 3 of the Civil Rights Act of 1866, 14 Stat. 27, 28 U.S.C. § 1443. See Virginia v. Rives, 100 U.S. 313, 318 (1880); Strauder v. West Virginia, 100 U.S. 303 (1880). The statute is of limited utility because of the interpretation placed on it almost from the beginning. Compare Georgia v. Rachel, 384 U.S. 780 (1966), with City of Greenwood v. Peacock, 384 U.S. 808 (1966). [Back to text]
2201
18 U.S.C. §§ 241, 242. See Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951); United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383 U.S. 787 (1966); United States v. Johnson, 390 U.S. 563 (1968). [Back to text]
2202
42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167 (1961); see also 42 U.S.C. § 1985(3), construed in Griffin v. Breckenridge, 403 U.S. 88 (1971). [Back to text]
2203
Ex parte Virginia, 100 U.S. 339 (1880). [Back to text]
2204
United States v. Price, 383 U.S. 787 (1966). [Back to text]
2205
Both 18 U.S.C. § 242 and 42 U.S.C. § 1983 contain language restricting application to deprivations under color of state law, whereas 18 U.S.C. § 241 lacks such language. The newest statute, 18 U.S.C. § 245, contains, of course, no such language. On the meaning of “custom” as used in the “under color of ” phrase, see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). [Back to text]
2206
E.g., the problem of “specific intent” in Screws v. United States, 325 U.S. 91 (1945), and Williams v. United States, 341 U.S. 97 (1951), and the problem of what “right or privilege” is “secured” to a person by the Constitution and laws of the United States, which divided the Court in United States v. Williams, 341 U.S. 70 (1951), and which was resolved in United States v. Price, 383 U.S. 787 (1966). [Back to text]
2207
18 Stat. 335, §§ 1, 2. [Back to text]
2208
109 U.S. 3 (1883). The Court also rejected the Thirteenth Amendment foundation for the statute, a foundation revived by Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). [Back to text]
2209
109 U.S. at 11. Justice Harlan’s dissent reasoned that Congress had the power to protect rights secured by the Fourteenth Amendment against invasion by both state and private action, but also viewed places of public accommodation as serving a quasi-public function that satisfied the state action requirement in any event. Id. at 46–48, 56–57. [Back to text]
2210
92 U.S. 542 (1876). The action was pursuant to § 6 of the 1870 Enforcement Act, ch. 114, 16 Stat. 140, the predecessor of 18 U.S.C. § 241. [Back to text]
2211
106 U.S. 629 (1883). The case held unconstitutional a provision of § 2 of the 1871 Act, ch. 22, 17 Stat. 13. [Back to text]
2212
See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v. United States, 203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281 (1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127 (1903). [Back to text]
2213
United States v. Cruikshank, 92 U.S. 542, 552–53, 556 (1876). The rights that the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right to vote free of interference on racial grounds in a federal election. [Back to text]
2214
Ex parte Yarbrough , 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 (1941). [Back to text]
2215
Logan v. United States, 144 U.S. 263 (1892). [Back to text]
2216
In re Quarles and Butler, 158 U.S. 532 (1895). See also United States v. Waddell, 112 U.S. 76 (1884) (right to homestead). [Back to text]
2217
United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403 U.S. 88 (1971). [Back to text]
2218
341 U.S. 70 (1951). [Back to text]
2219
383 U.S. 787 (1966) (due process clause). [Back to text]
2220
383 U.S. 745 (1966) (Equal Protection Clause). [Back to text]
2221
Justice Brennan’s opinion, 383 U.S. at 774, was joined by Chief Justice Warren and Justice Douglas. His statement that “[a] majority of the members of the Court expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy,” id. at 782 (emphasis by the Justice), was based upon the language of Justice Clark, joined by Justices Black and Fortas, id. at 761, that, because Justice Brennan had reached the issue, the three Justices were also of the view “that there now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies—with or without state action— that interfere with Fourteenth Amendment rights.” Id. at 762. In the opinion of the Court, Justice Stewart disclaimed any intention of speaking of Congress’s power under § 5. Id. at 755. [Back to text]
2222
383 U.S. at 782. [Back to text]
2223
383 U.S. at 777–79, 784. [Back to text]
2224
529 U.S. 598 (2000). [Back to text]
2225
Pub. L. 103–322, § 40302, 108 Stat. 1941, 42 U.S.C. § 13981. [Back to text]
2226
529 U.S. at 621 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948), for the proposition that the Amendment “erects no shield against merely private conduct, however discriminatory or wrongful”). [Back to text]
2227
This holding may have broader significance for federal civil rights law. For instance, 42 U.S.C. § 1985(3) (a civil statute paralleling the criminal statute held unconstitutional in United States v. Harris) lacks a “color of law” requirement. Although the requirement was read into it in Collins v. Hardyman, 341 U.S. 651 (1951), to avoid constitutional problems, it was read out again in Griffin v. Breckenridge, 403 U.S. 88, 97 (1971) (although it might be “difficult to conceive of what might constitute a deprivation of the equal protection of the laws by private persons . . . there is nothing inherent in the phrase that requires the action working the deprivation to come from the State”). What the unanimous Court held in Griffin was that an “intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102. As so construed, the statute was held constitutional as applied in the complaint before the Court on the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress’s powers under § 5 of the 14th Amendment. Id. at 107. The lower courts have been quite divided with respect to what constitutes a non-racial, class-based animus, and what constitutional protections must be threatened before a private conspiracy can be reached under § 1985(3). See, e.g., Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Great American Fed. S. & L. Ass’n v. Novotny, 584 F.2d 1235 (3d Cir. 1978) (en banc), rev’d, 442 U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en banc). The Court’s decision in Morrison, however, appears to preclude the use of § 1985(3) in relation to Fourteenth Amendment rights absent some state action. [Back to text]