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decisions and subsequent acts were necessary for its enforce-

ment. The Voting Rights Act suspended the use of literacy,

educational, moral, and other tests in areas where they had

been used to deny the right to vote on account of race or

color; authorized the appointment of federal examiners in

such areas to register voters. It also provided criminal penal-

ties for intimidating, threatening, or coercing any person for

voting or attempting to vote and abolished the poll tax. The

U.S. Supreme Court upheld the constitutionality of the act in

South Carolina v. Katzenbach

(383 U.S. 301 [1966]) and in

Katzenbach v. Morgan

(384 U.S. 641[1966]).

________________________

_______________________

To the Congress of the United States:

In this same month ninety-five years ago—on March

30, 1870—the Constitution of the United States was

amended for the fifteenth time to guarantee that no citizen

of our land should be denied the right to vote because of

race or color.

The command of the Fifteenth Amendment is

unequivocal and its equal force upon State Governments

and the Federal Government is unarguable.

Section I of this Amendment provides: The right of

citizens of the United States to vote shall not be denied or

abridged by the United States or by any State on account

of race, color, or previous condition of servitude.

By the oath I have taken “to preserve, protect and

defend the Constitution of the United States,” duty

directs—and strong personal conviction impels—that I

advise the Congress that action is necessary, and necessary

now, if the Constitution is to be upheld and the rights of all

citizens are not to be mocked, abused and denied.

I must regretfully report to the Congress the following

facts:

1. That the Fifteenth Amendment of our Constitution

is today being systematically and willfully circumvented in

certain State and local jurisdictions of our Nation.

2. That representatives of such State and local govern-

ments acting “under the color of law,” are denying Ameri-

can citizens the right to vote on the sole basis of race or

color.

3. That, as a result of these practices, in some areas of

our country today no significant number of American citi-

zens of the Negro race can be registered to vote except

upon the intervention and order of a Federal Court.

4. That the remedies available under law to citizens

thus denied their Constitutional rights—and the authority

presently available to the Federal Government to act in

their behalf—are clearly inadequate.

5. That the denial of these rights and the frustration of

efforts to obtain meaningful relief from such denial with-

out undue delay is contributing to the creation of condi-

tions which are both inimical to our domestic order and

tranquillity and incompatible with the standards of equal

justice and individual dignity on which our society stands.

I am, therefore, calling upon the Congress to dis-

charge the duty authorized in Section 2 of the Fifteenth

Amendment “to enforce this Article by appropriate legis-

lation.”

It could never be a welcome duty for any President to

place before Congress such a report of the willful failure

and refusal of public officials to honor, respect and abide

by any provision of the Constitution of the United States.

It is especially repugnant to report such disregard directed

against the Fifteenth Amendment by officials at the State

and local levels.

The essence of our American tradition of State and

local governments is the belief expressed by Thomas Jef-

ferson that Government is best which is closest to the peo-

ple. Yet that belief is betrayed by those State and local

officials who engage in denying the right of citizens to vote.

Their actions serve only to assure that their State govern-

ments and local governments shall be remote from the

people, least representative of the people’s will and least

responsive to the people’s wishes.

If there were no other reasons, the strengthening and

protection of the vital role of State and local governments

would be reasons enough to act against the denial of the

right to vote for any of our citizens.

But there are other reasons to act—clear, compelling

and present reasons.

1. The challenge now presented is more than a chal-

lenge to our Constitution—it is a blatant affront to the con-

science of this generation of Americans. Discrimination

based on race or color is reprehensible and intolerable to

the great American majority. In every national forum,

where they have chosen to test popular sentiment, defend-

ers of discrimination have met resounding rejection.

Americans now are not willing that the acid of the few shall

be allowed to corrode the souls of the many.

The Congress, the Courts, and the Executive, acting

together in clear response to the will of the people and the

mandate of the Constitution, have achieved more progress

toward equality of rights in recent years than in all the

years gone before. This tide will not be turned. The pur-

poseful many need not and will not bow to the willful few.

2. In our system, the first right and most vital of all our

rights is the right to vote. Jefferson described the elective

franchise as “the ark of our safety.” It is from the exercise

of this rights that the guarantee of all our other rights

flows.

Unless the right to vote be secure and undenied, all

other rights are insecure and subject to denial for all our

citizens. The challenge to this right is a challenge to Amer-

1612 ERA 9: Postwar United States

ica itself. We must meet this challenge as decisively as we

would meet a challenge mounted against our land from

enemies abroad.

3. In the world, America stands for—and works for—

the right of all men to govern themselves through free,

uninhibited elections. An ink bottle broken against an

American Embassy, a fire set in an American library, an

insult committed against our American flag, anywhere in

the world, does far less injury to our country and our cause

than the discriminatory denial of the right of any American

citizen at home to vote on the basis of race or color.

The issue presented by the present challenge to our

Constitution and our conscience transcends legalism,

although it does not transcend the law itself. We are chal-

lenged to demonstrate that there are no sanctuaries within

our law for those who flaunt it. We are challenged, also, to

demonstrate by our prompt, fitting and adequate response

now that the hope of our system is not force, not arms, not

the might of militia or marshals—but the law itself.

II.

The problem of discriminatory denial of the right to vote

has been with us ever since colonial times.

The test of real property ownership was universal

among the colonies and religious qualifications were

numerous. Race, color, sex, age, employment and resi-

dence were all used as the basis for qualifying voters. Such

restrictions continued to flourish among the States even

after formation of the Union.

The first literacy tests were legislated in Northern

States in an effort to exclude immigrants—especially

Irish—from the franchise. When the Fifteenth Amend-

ment was adopted, there were only six States which had

never discriminated against voting by Negroes.

If discrimination has been a prevalent practice in our

history of voting rights, the struggle against discrimination

has been our consistent purpose generation after genera-

tion.

Since the adoption of the Bill of Rights, no other right

has been strengthened and fortified so often by Constitu-

tional Amendment as the right to vote. As early as 1804—

and as recently as 1964—the Constitution of the United

States has been amended on at least six occasions to pro-

hibit discrimination against the right to vote, to enlarge the

franchise, and to assure the expression of the people’s will

as registered by them at the polls.

The challenge facing us today is not a challenge of

what the Constitution of the United States shall say—but

of what it shall mean.

What the Fifteenth Amendment says is unmistakable.

What the Fifteenth Amendment actually means for some

Americans in some jurisdictions is diametrically opposite

to the clear intent of the language.

By the device of equal laws, unequally applied, Negro

Americans are being denied the right and opportunity to

vote and discrimination is given sanction under color of

law. Varieties of techniques are infinite. Three are most

commonplace.

1. The technique of technical “error.”

Negro applicants for registration are disqualified on

grounds of technical “errors” in their registration forms.

Instances of record show Negroes disqualified for “errors”

such as failure to write out middle names, abbreviating the

words “street” and “avenue” in addresses, or failing to

compute age exactly to the day. Where this technique is

employed, “errors” are found in substantially all applica-

tions filed by Negroes, but few or none in applications filed

by whites.

2. The technique of non-cooperation.

A technique commonly used in conjunction with the

“error” technique involves simple non-cooperation by the

registrar. Thus, he may be “out” for most of the day during

registration periods. Registration may be possible only on

certain days each month. Limits may be imposed upon the

number of applicants processed each registration day. The

variety of circumventions possible by this device is endless.

3. The technique of subjective tests.

By far the most common technique by which Negro

citizens are prevented from exercising their right to regis-

ter and to vote is the use of subjective tests, unfairly

administered literacy tests, tests of “understanding,” and

tests of “character.” The only standard used in the whim of

the registrar. Such devices are used as vehicles for the

rejection of untold thousands of voters—solely on the basis

of race and color.

Whatever the technique, the intended purpose of

such devices is effectively served.

—In one State ten years ago, 59.6 percent of voting

age White persons were registered to vote. Only 4.3 per-

cent of eligible Negroes were registered to vote. The

changes since then are negligible.

—In several States, there are counties with sizeable

Negro populations where not a single Negro is registered

to vote.

—In scores of other counties where discrimination is

not so blatant, it remains far more difficult for Negroes to

Too frequently discrimination is the aim and intent of

such devices—and discrimination is the result.

III.

The Congress and the Executive Branch of the Federal

Government have recognized—and sought to meet—

these challenges to the authority of the Constitution of the

United States. I am proud to have been closely associated

with the succession of Federal enactments, beginning in

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1613

1957 with the first Civil Rights Law in more than eighty

years.

The major steps taken have been these:

1. The Civil Rights Act of 1957: The approach of this

statute was to challenge through litigation the discrimina-

tory use of vote tests.

2. The Civil Rights Act of 1960: This statute, pursuing

the same approach, sought to simplify such litigation.

3. The Civil Rights Act of 1964: Still following the

same approach, sought to expedite litigation.

In some areas litigation has been effective. But eight

years of litigation has made it clear that the prompt and

fair registration of qualified Negro citizens cannot be

achieved under present legislation in the face of consistent

defiance of the laws of Congress or the command of the

Constitution.

IV.

The challenge facing us is clear and immediate—it is also

profound.

The Constitution is being flouted.

The intent of Congress expressed three times in the

last seven years is being frustrated.

The national will is being denied.

The integrity of our Federal system is in contest.

Unless we act anew, with dispatch and resolution, we

shall sanction a sad and sorrowful course for the future.

For if the Fifteenth Amendment is successfully flouted

today, tomorrow the First Amendment, the Fourth

Amendment, the Fifth Amendment—the Sixth, the

Eighth, indeed, all the provisions of the Constitution on

which our system stands—will be subject to disregard and

erosion. Our essential strength as a society governed by the

rule of law will be crippled and corrupted and the unity of

our system hollowed out and left meaningless.

For these reasons, therefore, I ask the Congress under

the power clearly granted by the Fifteenth Amendment to

enact legislation which would:

1. Strike down restrictions to voting in all elections—

Federal, State, and local—which have been used to deny

Negroes the right to vote.

2. Establish in all States and counties where the right

to vote has been denied on account of race a simple stan-

dard of voter registration which will make it impossible to

thwart the Fifteenth Amendment.

3. Prohibit the use of new tests and devices wherever

they may be used for discriminatory purposes.

4. Provide adequate power to insure, if necessary, that

Federal officials can perform functions essential to the

right to vote whenever State officials deny that right.

5. Eliminate the opportunity to delay the right to vote

by resort to tedious and unnecessary lawsuits.

6. Provide authority to insure that properly registered

individuals will not be prohibited from voting.

Our purpose is not—and shall never be—either the

quest for power or the desire to punish. We seek to

increase the power of the people over all their govern-

ments, not to enhance the power of the Federal Govern-

ment over any of the people.

For the life of this Republic, our people have zealously

guarded their liberty against abuses of power by their gov-

ernments. The one weapon they have used is the mightiest

weapon in the arsenal of democracy—the vote. This has

been enough, for as Woodrow Wilson said, “The instru-

ment of all reform in America is the ballot.”

Yet today, in areas of America, segments of our popu-

lace must live in just that involuntary condition—policed

by forces they have no voice in choosing and forced to

abide by laws they have no vote in adopting.

A people divided over the right to vote can never build

a Nation united.

I am determined that these years shall be devoted to

perfecting our unity so that we may pursue more success-

fully the fulfillment of our high purposes at home and in

the world. While I have proposed to you other measures to

serve the strengthening of our free society and the happi-

ness of our free people, I regard action on the measures

proposed in this Message to be first in priority. We cannot

have government for all the people until we first make cer-

tain it is government of and by all the people.

Lyndon B. Johnson

The White House March 15, 1965

Source:

Public Papers of the Presidents of the United States, Lyndon B.

Johnson, 1965. Washington, D.C.: Government Printing

Office, 1963–68, pp. 287–291.

United States v. Price, 1966

This case, along with

United States v. Guest

(383 U.S. 745),

decided the same day, overturned earlier Supreme Court deci-

sions that had severely limited the ability of the Department of

Justice to prosecute perpetrators of violence against people

trying to exercise civil rights such as voting or freedom of

expression. The case had particular significance for African

Americans in the Deep South where local juries usually re-

fused to convict whites who assaulted or even murdered

blacks. Several notorious trials brought this situation to public

attention. For example, a 1955 jury acquitted the men who

murdered a teenaged black northerner, Emmett Till, for whist-

ling at a white woman. (Till’s supporters later claimed he

1614 ERA 9: Postwar United States

lisped and that the whistle was the result, not an expression

toward the woman.) However, that case did not result in any

legal changes. Under President Lyndon Johnson, however, the

murder of three civil rights workers in Philadelphia, Missis-

sippi, in June 1964, and of African-American Col. Lemuel

Penn several days later, spurred passage of the Civil Rights Act

and helped change the climate for southern juries, who more

frequently dealt guilty pleas.

The civil rights workers, two white northerners, Michael

Schwerner and Andrew Goodman, and black Mississippian

James Chaney were arrested by Deputy Sheriff Cecil Price

while investigating a church burning, one of many such Klan-

perpetrated actions against civil rights efforts, which often

used churches for meetings. Hence the FBI’s code name for

the case,

MIBURN

, for “Mississippi burning.” After conspir-

ing with local Klansmen, Price released them, but their car

was overtaken where the terrorists murdered them. Many,

mostly white, northern college students had come to Missis-

sippi to participate in education and voting rights projects

(Freedom Summer) and the disappearance received substan-

tial media coverage. Although a clear federal case could not

be made, Johnson ordered the FBI to investigate. Eventually

an informant revealed that the bodies were buried in a dam,

where they were found August 4. On December 4, 19 peo-

ple, Sheriff Price among them, were arrested and charged

with violating the civil rights of the three murdered men. It

took several trials and the Supreme Court decision, but in

1967, seven of the 19 conspirators, including Sheriff Price,

were convicted.

The

Guest

case involved Penn’s death, and was more

clearly a federal case because Penn was returning from his

army reserve duty. Because southern juries began including

African Americans and even white jurors were willing to con-

vict whites who harmed blacks, there has been less need to

resort to federal courts. Nevertheless, the

Price

and

Guest

decisions allowed federal agents to investigate a much wider

range of civil rights violations than before 1966.

________________________

_______________________

MR. JUSTICE FORTAS delivered the opinion of the

Court.

These are direct appeals from the dismissal in part of

two indictments returned by the United States Grand Jury

for the Southern District of Mississippi. The indictments

allege assaults by the accused persons upon the rights of

the asserted victims to due process of law under the Four-

teenth Amendment. The indictment in No. 59 charges 18

persons with violations of 18 U. S. C. § 241. In No. 60, the

same 18 persons are charged with offenses based upon 18

U. S. C. § 242. These are among the so-called civil rights

statutes which have come to us from Reconstruction days,

the period in our history which also produced the Thir-

teenth, Fourteenth, and Fifteenth Amendments to the

Constitution.

The sole question presented in these appeals is

whether the specified statutes make criminal the conduct

for which the individuals were indicted. It is an issue of

construction, not of constitutional power. We have no

doubt of “the power of Congress to enforce by appropriate

criminal sanction every right guaranteed by the Due Pro-

cess Clause of the Fourteenth Amendment.”

[The indictment alleges that] on June 21, 1964, Cecil

Ray Price, the Deputy Sheriff of Neshoba County, Missis-

sippi, detained Michael Henry Schwerner, James Earl

Chaney and Andrew Goodman in the Neshoba County jail

located in Philadelphia, Mississippi. He released them in

the dark of that night. He then proceeded by automobile

on Highway 19 to intercept his erstwhile wards. He

removed the three men from their automobile, placed

them in an official automobile of the Neshoba County

Sheriff’s office, and transported them to a place on an

unpaved road.

These acts, it is alleged, were part of a plan and con-

spiracy whereby the three men were intercepted by the 18

defendants, including Deputy Sheriff Price, Sheriff Rainey

and Patrolman Willis of the Philadelphia, Mississippi,

Police Department. The purpose and intent of the release

from custody and the interception, according to the

charge, were to “punish” the three men. The defendants,

it is alleged, “did wilfully assault, shoot and kill” each of the

three. And, the charge continues, the bodies of the three

victims were transported by one of the defendants from

the rendezvous on the unpaved road to the vicinity of the

construction site of an earthen dam approximately five

miles southwest of Philadelphia, Mississippi.

These are federal and not state indictments. They do

not charge as crimes the alleged assaults or murders. The

indictments are framed to fit the stated federal statutes,

and the question before us is whether the attempt of the

draftsman for the Grand Jury in Mississippi has been suc-

cessful: whether the indictments charge offenses against

the various defendants which may be prosecuted under

the designated federal statutes.

We shall deal first with the indictment in No. 60,

based on § 242 of the Criminal Code, and then with the

indictment in No. 59, under § 241. We do this for ease of

exposition and because § 242 was enacted by the Congress

about four years prior to § 241. Section 242 was enacted in

1866; § 241 in 1870.

I. No. 60.

Section 242 defines a misdemeanor, punishable by fine of

not more than $ 1,000 or imprisonment for not more than

one year, or both. So far as here significant, it provides

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1615

punishment for “Whoever, under color of any law, statute,

ordinance, regulation, or custom, willfully subjects any

inhabitant of any State . . . to the deprivation of any rights,

privileges, or immunities secured or protected by the Con-

stitution or laws of the United States. . . .”

The indictment in No. 60 contains four counts, each of

which names as defendants the three officials and 15

nonofficial persons. The First Count charges, on the basis

of allegations substantially as set forth above, that all of the

defendants conspired “to wilfully subject” Schwerner,

Chaney and Goodman “to the deprivation of their right,

privilege and immunity secured and protected by the

Fourteenth Amendment to the Constitution of the United

States not to be summarily punished without due process

of law by persons acting under color of the laws of the

State of Mississippi.” This is said to constitute a conspiracy

to violate § 242, and therefore an offense under 18 U. S. C.

§ 371. The latter section, the general conspiracy statute,

makes it a crime to conspire to commit any offense against

the United States. The penalty for violation is the same as

for direct violation of § 242—that is, it is a misdemeanor.

On a motion to dismiss, the District Court sustained

this First Count as to all defendants. As to the sheriff,

deputy sheriff and patrolman, the court recognized that

each was clearly alleged to have been acting “under color

of law” as required by § 242. As to the private persons, the

District Court held that “It is immaterial to the conspiracy

that these private individuals were not acting under color

of law” because the count charges that they were conspir-

ing with persons who were so acting. The court necessar-

ily was satisfied that the indictment, in alleging the arrest,

detention, release, interception and killing of Schwerner,

Chaney and Goodman, adequately stated as the purpose of

the conspiracy, a violation of § 242, and that this section

could be violated by “wilfully subject[ing the victims] . . .

to the deprivation of their right, privilege and immunity”

under the Due Process Clause of the Fourteenth Amend-

ment.

No appeal was taken by the defendants from the deci-

sion of the trial court with respect to the First Count and

it is not before us for adjudication.

The Second, Third and Fourth Counts of the indict-

ment in No. 60 charge all of the defendants, not with con-

spiracy, but with substantive violations of § 242. Each of

these counts charges that the defendants, acting “under

color of the laws of the State of Mississippi,” “did wilfully

assault, shoot and kill” Schwerner, Chaney and Goodman,

respectively, “for the purpose and with the intent” of

punishing each of the three and that the defendants

“did thereby wilfully deprive” each “of rights, privileges

and immunities secured and protected by the Constitution

and the laws of the United States”—namely, due process

of law.

The District Court held these counts of the indict-

ment valid as to the sheriff, deputy sheriff and patrolman.

But it dismissed them as against the nonofficial defendants

because the counts do not charge that the latter were “offi-

cers in fact, or de facto in anything allegedly done by them

‘under color of law.’”

We note that by sustaining these counts against the

three officers, the court again necessarily concluded that

an offense under § 242 is properly stated by allegations of

willful deprivation, under color of law, of life and liberty

without due process of law. We agree. No other result

would be permissible under the decisions of this Court.

But we cannot agree that the Second, Third or Fourth

Counts may be dismissed as against the nonofficial defen-

dants. Section 242 applies only where a person indicted

has acted “under color” of law. Private persons, jointly

engaged with state officials in the prohibited action, are

acting “under color” of law for purposes of the statute. To

act “under color” of law does not require that the accused

be an officer of the State. It is enough that he is a willful

participant in joint activity with the State or its agents. In

the present case, according to the indictment, the brutal

joint adventure was made possible by state detention and

calculated release of the prisoners by an officer of the

State. This action, clearly attributable to the State, was part

of the monstrous design described by the indictment. State

officers participated in every phase of the alleged venture:

the release from jail, the interception, assault and murder.

It was a joint activity, from start to finish. Those who took

advantage of participation by state officers in accomplish-

ment of the foul purpose alleged must suffer the conse-

quences of that participation. In effect, if the allegations

are true, they were participants in official lawlessness, act-

ing in willful concert with state officers and hence under

color of law.

Appellees urge that the decision of the District Court

was based upon a construction of the indictment to the

effect that it did not charge the private individuals with

acting “under color” of law. Consequently, they urge us to

affirm in No. 60. In any event, they submit, since the trial

court’s decision was based on the inadequacy of the indict-

ment and not on construction of the statute, we have no

jurisdiction to review it on direct appeal. United States v.

Swift & Co., 318 U.S. 442. We do not agree. Each count

of the indictment specifically alleges that all of the defen-

dants were acting “under color of the laws of the State of

Mississippi.” The fault lies not in the indictment, but in

the District Court’s view that the statute requires that each

offender be an official or that he act in an official capacity.

We have jurisdiction to consider this statutory question on

direct appeal and, as we have shown, the trial court’s

determination of it is in error. Since each of the private

individuals is indictable as a principal acting under color of

1616 ERA 9: Postwar United States

law, we need not consider whether he might be held to

answer as an “aider or abettor” under 18 U. S. C. § 2 (1964

ed.), despite omission to include such a charge in the

indictment.

Accordingly, we reverse the dismissal of the Second,

Third and Fourth Counts of the indictment in No. 60 and

remand for trial.

II. No. 59.

No. 59 charges each of the 18 defendants with a felony—

a violation of § 241. This indictment is in one count. It

charges that the defendants “conspired together . . . to

injure, oppress, threaten and intimidate” Schwerner,

Chaney and Goodman “in the free exercise and enjoyment

of the right and privilege secured to them by the Four-

teenth Amendment to the Constitution of the United

States not to be deprived of life or liberty without due pro-

cess of law by persons acting under color of the laws of

Mississippi.” The indictment alleges that it was the pur-

pose of the conspiracy that Deputy Sheriff Price would

release Schwerner, Chaney and Goodman from custody in

the Neshoba County jail at such time that Price and the

other 17 defendants “could and would intercept” them

“and threaten, assault, shoot and kill them.” The penalty

under § 241 is a fine of not more than $ 5,000, or impris-

onment for not more than 10 years, or both.

Section 241 is a conspiracy statute. It reads as follows:

“If two or more persons conspire to injure, oppress,

threaten, or intimidate any citizen in the free exercise or

enjoyment of any right or privilege secured to him by the

Constitution or laws of the United States, or because of his

having so exercised the same; or “If two or more persons go

in disguise on the highway, or on the premises of another,

with intent to prevent or hinder his free exercise or enjoy-

ment of any right or privilege so secured—“They shall be

fined not more than $ 5,000 or imprisoned not more than

ten years, or both.”

The District Court dismissed the indictment as to all

defendants. In effect, although § 241 includes rights or

privileges secured by the Constitution or laws of the

United States without qualification or limitation, the

court held that it does not include rights protected by the

Fourteenth Amendment. It will be recalled that in No. 60

the District Court held that § 242 included the denial of

Fourteenth Amendment rights—the same right to due

process involved in the indictment under § 241. Both

include rights or privileges secured by the Constitution or

laws of the United States. Neither is qualified or limited.

Each includes, presumably, all of the Constitution and

laws of the United States. To the reader of the two sec-

tions, versed only in the English language, it may seem

bewildering that the two sections could be so differently

read.

But the District Court purported to read the statutes

with the gloss of Williams I. In that case, the only case in

which this Court has squarely confronted the point at

issue, the Court did in fact sustain dismissal of an indict-

ment under § 241. But it did not, as the District Court

incorrectly assumed, hold that § 241 is inapplicable to

Fourteenth Amendment rights. The Court divided equally

on the issue. Four Justices, in an opinion by Mr. Justice

Frankfurter, were of the view that § 241 “only covers con-

duct which interferes with rights arising from the substan-

tive powers of the Federal Government”—rights “which

Congress can beyond doubt constitutionally secure against

interference by private individuals.” 341 U.S., at 73, 77.

Four other Justices, in an opinion by MR. JUSTICE

DOUGLAS, found no support for Mr. Justice Frank-

furter’s view in the language of the section, its legislative

history, or its judicial interpretation up to that time. They

read the statute as plainly covering conspiracies to injure

others in the exercise of Fourteenth Amendment rights.

They could see no obstacle to using it to punish depriva-

tions of such rights. Dismissal of the indictment was

affirmed because MR. JUSTICE BLACK voted with those

who joined Mr. Justice Frankfurter. He did so, however,

for an entirely different reason—that the prosecution was

barred by res judicata—and he expressed no view on the

issue whether “§ 241, as applied, is too vague and uncer-

tain in scope to be consistent with the Fifth Amendment.”

Williams I thus left the proper construction of § 241, as

regards its applicability to protect Fourteenth Amendment

rights, an open question.

In view of the detailed opinions in Williams I, it

would be supererogation to track the arguments in all of

their intricacy. On the basis of an extensive re-examina-

tion of the question, we conclude that the District Court

erred; that § 241 must be read as it is written—to reach

conspiracies “to injure . . . any citizen in the free exercise

or enjoyment of any right or privilege secured to him by

the Constitution or laws of the United States . . .”; that this

language includes rights or privileges protected by the

Fourteenth Amendment; that whatever the ultimate cov-

erage of the section may be, it extends to conspiracies oth-

erwise within the scope of the section, participated in by

officials alone or in collaboration with private persons; and

that the indictment in No. 59 properly charges such a con-

spiracy in violation of § 241. We shall confine ourselves to

a review of the major considerations which induce our

conclusion.

There is no doubt that the indictment in No. 59 sets

forth a conspiracy within the ambit of the Fourteenth

Amendment. Like the indictment in No. 60, supra, it

alleges that the defendants acted “under color of law” and

that the conspiracy included action by the State through its

law enforcement officers to punish the alleged victims

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1617

without due process of law in violation of the Fourteenth

Amendment’s direct admonition to the States.

1. The indictment specifically alleges that the sheriff,

deputy sheriff and a patrolman participated in the conspir-

acy; that it was a part of the “plan and purpose of the con-

spiracy” that Deputy Sheriff Price, “while having [the

three victims] . . . in his custody in the Neshoba County Jail

. . . would release them from custody at such time that he

[and others of the defendants] . . . could and would inter-

cept [the three victims] . . . and threaten, assault, shoot and

kill them.”

This is an allegation of state action which, beyond dis-

pute, brings the conspiracy within the ambit of the Four-

teenth Amendment. It is an allegation of official, state

participation in murder, accomplished by and through its

officers with the participation of others. It is an allegation

that the State, without the semblance of due process of

law as required of it by the Fourteenth Amendment, used

its sovereign power and office to release the victims from

jail so that they were not charged and tried as required

by law, but instead could be intercepted and killed. If

the Fourteenth Amendment forbids denial of counsel,

it clearly denounces denial of any trial at all. As we

have consistently held “The Fourteenth Amendment pro-

tects the individual against state action, not against

wrongs done by individuals.” In the present case, the par-

ticipation by law enforcement officers, as alleged in the

indictment, is clearly state action, as we have discussed,

and it is therefore within the scope of the Fourteenth

Amendment.

2. The argument, however, of Mr. Justice Frank-

furter’s opinion in Williams I, upon which the District

Court rests its decision, cuts beneath this. It does not deny

that the accused conduct is within the scope of the Four-

teenth Amendment, but it contends that in enacting § 241,

the Congress intended to include only the rights and

privileges conferred on the citizen by reason of the “sub-

stantive” powers of the Federal Government—that is, by

reason of federal power operating directly upon the citizen

and not merely by means of prohibitions of state action. As

the Court of Appeals for the Fifth Circuit in Williams I,

relied upon in the opinion below, put it, “the Congress had

in mind the federal rights and privileges which appertain

to citizens as such and not the general rights extended to

all persons by the . . . Fourteenth Amendment.” We do not

agree.

The language of § 241 is plain and unlimited. As we

have discussed, its language embraces all of the rights and

privileges secured to citizens by all of the Constitution and

all of the laws of the United States. There is no indication

in the language that the sweep of the section is confined to

rights that are conferred by or “flow from” the Federal

Government, as distinguished from those secured or con-

firmed or guaranteed by the Constitution. We agree with

the observation of Mr. Justice Holmes in United States v.

Mosley, 238 U.S. 383, 387-388, that

“The source of this section in the doings of the Ku

Klux and the like is obvious and acts of violence obviously

were in the mind of Congress. Naturally Congress put

forth all its powers. . . . This section dealt with Federal

rights and with all Federal rights, and protected them in

the lump . . . . [It should not be construed so] as to deprive

citizens of the United States of the general protection

which on its face § 19 [now § 241] most reasonably

affords.”

We believe, with Mr. Justice Holmes, that the history of

the events from which § 241 emerged illuminates the pur-

pose and means of the statute with an unmistakable light.

We think that history leaves no doubt that, if we are to give

§ 241 the scope that its origins dictate, we must accord it a

sweep as broad as its language. We are not at liberty to

seek ingenious analytical instruments for excluding from

its general language the Due Process Clause of the Four-

teenth Amendment—particularly since the violent denial

of legal process was one of the reasons motivating enact-

ment of the section.

Section 241 was enacted as part of what came to be

known as the Enforcement Act of 1870, 16 Stat. 140. n10

The Act was passed on May 31, 1870, only a few months

after ratification of the Fifteenth Amendment. In addition

to the new § 241, it included a re-enactment of a provision

of the Civil Rights Act of 1866 which is now § 242. The

intended breadth of § 241 is emphasized by contrast with

the narrowness of § 242 as it then was. n11 Section 242 for-

bade the deprivation, “under color of any law,” of “any

right secured or protected by this act.” The rights pro-

tected by the Act were narrow and specific: “to make and

enforce contracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceedings for

the security of person and property as is enjoyed by white

citizens [and to] be subject to like punishment, pains,

penalties, taxes, licenses, and exactions of every kind, and

none other.” Act of May 31, 1870, § 16, 16 Stat. 144, re-

enacting with minor changes Act of April 9, 1866, § 1, 14

Stat. 27. Between 1866 and 1870 there was much agitated

criticism in the Congress and in the Nation because of the

continued denial of rights to Negroes, sometimes accom-

panied by violent assaults. In response to the demands for

more stringent legislation Congress enacted the Enforce-

ment Act of 1870. Congress had before it and re-enacted §

242 which was explicitly limited as we have described. At

the same time, it included § 241 in the Act using broad lan-

guage to cover not just the rights enumerated in § 242, but

all rights and privileges under the Constitution and laws of

the United States.

1618 ERA 9: Postwar United States

It was not until the statutory revision of 1874 that the spe-

cific enumeration of protected rights was eliminated from

§ 242. The section was then broadened to include as wide

a range of rights as § 241 already did: “any rights, privi-

leges, or immunities, secured or protected by the Consti-

tution and laws of the United States.” The substantial

change thus effected was made with the customary stout

assertions of the codifiers that they had merely clarified

and reorganized without changing substance. n12 Section

241 was left essentially unchanged, and neither in the 1874

revision nor in any subsequent re-enactment has there

been the slightest indication of a congressional intent to

narrow or limit the original broad scope of § 241. It is clear,

therefore, that § 241, from original enactment through

subsequent codifications, was intended to deal, as Mr. Jus-

tice Holmes put it, with conspiracies to interfere with

“Federal rights and with all Federal rights.” We find no

basis whatsoever for a judgment of Solomon which would

give to the statute less than its words command.

The purpose and scope of the 1866 and 1870 enact-

ments must be viewed against the events and passions of

the time.The Civil War had ended in April 1865. Relations

between Negroes and whites were increasingly turbulent.

Congress had taken control of the entire governmental

process in former Confederate States. It had declared the

governments in 10 “unreconstructed” States to be illegal

and had set up federal military administrations in their

place. Congress refused to seat representatives from these

States until they had adopted constitutions guaranteeing

Negro suffrage, and had ratified the Fourteenth Amend-

ment. Constitutional conventions were called in 1868. Six

of the 10 States fulfilled Congress’ requirements in 1868,

the other four by 1870.

For a few years “radical” Republicans dominated the

governments of the Southern States and Negroes played a

substantial political role. But countermeasures were swift

and violent. The Ku Klux Klan was organized by southern

whites in 1866 and a similar organization appeared with

the romantic title of the Knights of the White Camellia. In

1868 a wave of murders and assaults was launched includ-

ing assassinations designed to keep Negroes from the

polls. The States themselves were helpless, despite the

resort by some of them to extreme measures such as mak-

ing it legal to hunt down and shoot any disguised man.

Within the Congress pressures mounted in the period

between the end of the war and 1870 for drastic measures.

A few months after the ratification of the Thirteenth

Amendment on December 6, 1865. Congress, on April 9,

1866, enacted the Civil Rights Act of 1866, which, as we

have described, included § 242 in its originally narrow

form. On June 13, 1866, the Fourteenth Amendment was

proposed, and it was ratified in July 1868. In February

1869 the Fifteenth Amendment was proposed, and it was

ratified in February 1870. On May 31, 1870, the Enforce-

ment Act of 1870 was enacted.

In this context, it is hardly conceivable that Congress

intended § 241 to apply only to a narrow and relatively

unimportant category of rights. We cannot doubt that the

purpose and effect of § 241 was to reach assaults upon

rights under the entire Constitution, including the Thir-

teenth, Fourteenth and Fifteenth Amendments, and not

merely under part of it.

This is fully attested by the only statement explanatory

of § 241 in the recorded congressional proceedings relative

to its enactment. We refer to the speech of Senator Pool of

North Carolina who introduced the provisions as an

amendment to the Enforcement Act of 1870. The Sena-

tor’s remarks are printed in full in the Appendix to this

opinion. He urged that the section was needed in order to

punish invasions of the newly adopted Fourteenth and Fif-

teenth Amendments to the Constitution. He acknowl-

edged that the States as such were beyond the reach of the

punitive process, and that the legislation must therefore

operate upon individuals. He made it clear that “It matters

not whether those individuals be officers or whether they

are acting upon their own responsibility.” We find no evi-

dence whatever that Senator Pool intended that § 241

should not cover violations of Fourteenth Amendment

rights, or that it should not include state action or actions

by state officials.

We conclude, therefore, that it is incumbent upon us

to read § 241 with full credit to its language. Nothing in the

prior decisions of this Court or of other courts which have

considered the matter stands in the way of that conclusion.

The present application of the statutes at issue does

not raise fundamental questions of federal-state relation-

ships. We are here concerned with allegations which

squarely and indisputably involve state action in direct vio-

lation of the mandate of the Fourteenth Amendment—

that no State shall deprive any person of life or liberty

without due process of law. This is a direct, traditional con-

cern of the Federal Government. It is an area in which the

federal interest has existed for at least a century, and in

which federal participation has intensified as part of a

renewed emphasis upon civil rights. Even as recently as

1951, when Williams I was decided, the federal role in the

establishment and vindication of fundamental rights—

such as the freedom to travel, nondiscriminatory access to

public areas and nondiscriminatory educational facilities—

was neither as pervasive nor as intense as it is today. Today,

a decision interpreting a federal law in accordance with its

historical design, to punish denials by state action of con-

stitutional rights of the person can hardly be regarded as

adversely affecting “the wise adjustment between State

responsibility and national control. . . .” In any event, the

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1619

problem, being statutory and not constitutional, is ulti-

mately, as it was in the beginning, susceptible of congres-

sional disposition.

Reversed and remanded.

Source:

University of Missouri Kansas City (UMKC) Law School.

Available on-line. URL: http//www.law.umkc.edu/faculty/

projects/ftrials/price&bowers/sctdecision.html. Accessed

January 2004.

Miranda v. Arizona, 1966

Landmark U.S. Supreme Court decision issued on June 13,

1966, that extended federal constitutional protections to

defendants in state criminal trials. The decision reversed the

conviction of accused rapist Ernesto Miranda, who had been

questioned by law enforcement officers without being advised

of his rights. Citing Fifth Amendment protection against self-

incrimination and Sixth Amendment right to counsel, the

Supreme Court, in a 5-4 decision, ruled that as soon as sus-

pects are seized by police, they must be informed of their

rights. The phrases, familiar from TV programs, do not appear

exactly the same way in the opinions, but they are summa-

rized as: “you have the right to remain silent, anything you say

can be used against you, you have the right to consult with an

attorney before questioning and to have counsel present dur-

ing questioning, and, if you are indigent, an attorney will be

appointed for you.” Many law enforcement agencies have the

“Miranda rights” printed out and the suspects must sign that

they have heard and understand them.

Miranda

has been termed, depending on one’s perspec-

tive, either the high or the low point for confession cases. For

civil libertarians and defense lawyers, the decision meant that

the poorest or most despicable criminal still had rights that

must be respected. Others criticized the case as contributing

to rising crime rates. Like other cases enforcing defendant’s

rights, it also contributed to better police work, more thorough

investigations, and possibly more convictions, because cases

could not be overturned because of coerced confessions. The

decision permitted general questioning before the rights are

read.

Many subjects actually waive their rights and speak

directly to law enforcement without requesting an attorney,

and many make incriminating statements which then become

admissible in court. As expressed in oral arguments and in

Chief Justice Earl Warren’s majority opinion, the Federal

Bureau of Investigation had been reading these rights to sus-

pects for many years without any adverse impact on success-

ful prosecutions.

Previously, in

Gideon v. Wainwright

(372 U.S. 375),

issued March 18, 1963, the U.S. Supreme Court declared that

accused persons have a constitutional right to representation

by counsel in all state criminal trials. Clarence Earl Gideon, a

poor, uneducated Florida drifter, wrote his own petition to the

Supreme Court appealing a conviction for petit larceny after a

trial in which he had been denied the assistance of a lawyer.

Twenty-two states filed briefs supporting his position. The

Court ruled unanimously that the Sixth Amendment made the

right to counsel fundamental and essential to a fair trial, and

that the Fourteenth Amendment extended this protection to

state matters. The decision led to the creation of programs to

supply counsel to indigent defendants throughout the United

States.

In addition, on June 22, 1964, the U.S. Supreme Court

established in

Escobedo v. Illinois

(378 U.S. 438) that under

the Sixth Amendment a suspect in police custody has a right

to consult counsel during an interrogation. Danny Escobedo

had been convicted of murder on the basis of a confession he

made prior to his formal indictment during an interrogation in

which he had been denied access to his attorney and had not

been advised of his constitutional right to refuse to answer

police questions. As a result, the Supreme Court ruled that this

confession could not be used as evidence against him. The

success of a system of criminal justice, the Court said, should

not depend on citizens’ unawareness of their constitutional

rights.

Two years after

Miranda

, Congress enacted a law (18

U.S.C. § 3501) that omitted the need of a warning and stated

that any voluntary admission by the suspect was permissible in

court. In

Dickerson v. United States

(530 U.S. 428 [2000]),

Chief Justice Rehnquist, writing for the majority, concluded that

the intent of that law was to overrule

Miranda

. His decision

held that Congress cannot override a Supreme Court decision

if the Court is interpreting the Constitution. Because, according

to Rehnquist,

Miranda

is “constitutionally based,” Congress

could not use legislation to overturn it.

________________________

_______________________

Mr. Chief Justice Warren delivered the opinion of the

Court.

The cases before us raise questions which go to the

roots of our concepts of American criminal jurisprudence:

the restraints society must observe consistent with the

Federal Constitution in prosecuting individuals for crime.

More specifically, we deal with the admissibility of state-

ments obtained from an individual who is subjected to cus-

todial police interrogation and the necessity for

procedures which assure that the individual is accorded his

privilege under the Fifth Amendment to the Constitution

not to be compelled to incriminate himself.

We dealt with certain phases of this problem recently

in Escobedo v. State of Illinois, 378 U.S. 478 (1964). There,

as in the four cases before us, law enforcement officials

took the defendant into custody and interrogated him in a

1620 ERA 9: Postwar United States

police station for the purpose of obtaining a confession.

The police did not effectively advise him of his right to

remain silent or of his right to consult with his attorney.

Rather, they confronted him with an alleged accomplice

who accused him of having perpetrated a murder. When

the defendant denied the accusation and said “I didn’t

shoot Manuel, you did it,” they handcuffed him and took

him to an interrogation room. There, while handcuffed

and standing, he was questioned for four hours until he

confessed. During this interrogation, the police denied his

request to speak to his attorney, and they prevented his

retained attorney, who had come to the police station,

from consulting with him. At his trial, the State, over his

objection, introduced the confession against him. We held

that the statements thus made were constitutionally inad-

missible.

This case has been the subject of judicial interpreta-

tion and spirited legal debate. . . . We granted certiorari in

these cases . . . in order further to explore some facets of

the problems, thus exposed, of applying the privilege

against self-incrimination to in-custody interrogation, and

to give concrete constitutional guidelines for law enforce-

ment agencies and courts to follow.

We start here . . . with the premise that our holding

. . . is an application of principles long recognized and ap-

plied in other settings. . . . Escobedo . . . was but an expli-

cation of basic rights that are enshrined in our

Constitution—that “No person . . . shall be compelled in

any criminal case to be a witness against himself,” and

that “the accused shall . . . have the Assistance of Coun-

sel”—rights which were put in jeopardy in that case

through official overbearing. These precious rights were

fixed in our Constitution only after centuries of persecu-

tion and struggle. And in the words of Chief Justice Mar-

shall, they were secured “for ages to come, and . . .

designed to approach immortality as nearly as human

institutions can approach it,”

* * *

This was the spirit in which we delineated, in meaningful

language, the manner in which the constitutional rights of

the individual could be enforced against overzealous police

practices. . . .

Our holding . . . briefly state[d] is this: the prosecution

may not use statements, whether exculpatory or inculpa-

tory, stemming from custodial interrogation of the defen-

dant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-

incrimination. By custodial interrogation, we mean ques-

tioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his

freedom of action in any significant way. As for the proce-

dural safeguards to be employed, unless other fully effec-

tive means are devised to inform accused persons of their

right of silence and to assure a continuous opportunity to

exercise it, the following measures are required. Prior to

any questioning, the person must be warned that he has a

right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a

right to the presence of an attorney, either retained or

appointed. The defendant may waive effectuation of these

rights, provided the waiver is made voluntarily, knowingly

and intelligently. If, however, he indicates in any manner

and at any stage of the process that he wishes to consult

with an attorney before speaking there can be no ques-

tioning. Likewise, if the individual is alone and indicates in

any manner that he does not wish to be interrogated, the

police may not question him. The mere fact that he may

have answered some questions or volunteered some state-

ments on his own does not deprive him of the right to

refrain from answering any further inquiries until he has

consulted with an attorney and thereafter consents to be

questioned.

The constitutional issue we decide . . . is the admissibility

of statements obtained from a defendant questioned while

in custody or otherwise deprived of his freedom of action

in any significant way. . . . The defendant was questioned

by police officers, detectives, or a prosecuting attorney in

a room in which he was cut off from the outside world

. . . . The defendant [was not] given a full and effective

warning of his rights at the outset of the interrogation pro-

cess. . . . The questioning elicited [confessions that] were

admitted at . . . trial. . . .

An understanding of the nature and setting of this in-

custody interrogation is essential to our decisions today.

The difficulty in depicting what transpires at such interro-

gations stems from the fact that in this country they have

largely taken place incommunicado. . . . The Commission

on Civil Rights in 1961 found much evidence to indicate

that “some policemen still resort to physical force to obtain

confessions.” . . .

. . .Unless a proper limitation upon custodial interro-

gation is achieved—such as these decisions will advance—

there can be no assurance that practices of this nature will

be eradicated in the foreseeable future. . . .

Again we stress that the modern practice of in-custody

interrogation is psychologically rather than physically ori-

ented. . . .This Court has recognized that coercion can be

mental as well as physical, and that the blood of the

accused is not the only hallmark of an unconstitutional

inquisition.” . . .

The officers are told by the manuals that the “princi-

pal psychological factor contributing to a successful inter-

rogation is privacy—being alone with the person under

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1621