Scott v. Moore

GARWOOD, Circuit Judge,

dissenting.

I respectfully dissent and join in Parts II A (“The Nature of the Right for Which § 1985(3) Provides a Remedy”) and II E (“The Constitutional Question: The Source of Congressional Power”) of the dissenting opinion authored by Judges Rubin and Williams.

In my opinion, the phrase “equal privileges and immunities under the laws” in the first clause of section 1985(3) refers to those rights that the United States Constitution protects against interference by private action (as well as from impairment by state action), such as the right to be free of the badges of slavery as secured by the Thirteenth Amendment and the right to interstate travel. In other words, this phrase applies to rights that have no “state action” requirement. The majority concedes that such rights are not involved here. On the other hand, the phrase “the equal protection of the laws” in the first clause of section 1985(3), repeating verbatim the concluding words of Section 1 of the Fourteenth Amendment, would seem to refer to rights that the United States Constitution protects only against deprivation by some kind of state action or inaction. This is not to say that a private conspiracy cannot deprive a party of the equal protection of the laws; but the object of the conspiracy must be to, “directly or indirectly,” in some manner bring about a situation where the protection of the law is unequally afforded or applied to the victim. I believe this construction accords with the wording of the Ku Klux Klan Act, with its title (“An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes”.), and with both the operative intent and the constitutional understanding of those in the Forty-Second Congress who supported the Cook-Willard limiting amendment.

The overall purpose of this amendment was plainly to prevent the Act from becoming a kind of national tort law and to keep it from transgressing the perceived limitations on the power of Congress. While certainly one method of accomplishing this purpose was the imposition of a class based animus requirement, this was not the only method. The amendment also reflects its proponents’ recognition that, with but few exceptions, the rights of citizens are protected by the United States Constitution only against governmental invasion. While with respect to such rights Section 5 of the Fourteenth Amendment was doubtless understood by the proponents of the Cook-Willard amendment as allowing Congress to prohibit private conduct designed to, directly or indirectly, deny the protection thus afforded by the United States Constitution, Section 5 was not understood as allowing Congress to change the ultimate nature of what the United States Constitution protected those rights against, namely governmental misfeasance or nonfeasance. This understanding is reflected, for example, in the remarks of Congressman Burchard, quoted in the opinion of Judges Rubin and Williams, at 1011-1012 supra, that the Act as amended condemned conspiracies.

“designed to prevent the equal and impartial administration of justice.... The gravamen of the offense is the un *1023 lawful attempt to prevent a State through its officers enforcing in behalf of a citizen of the United States his constitutional right to equality of protection.”

As stated in A Construction of Section 1985(c): 1

“The language of equal protection and equal privileges and immunities was added as a limitation, not as an expansion. The fundamental congressional purpose was to prevent private conspiracies from taking over the government, or from affecting the political environment so as to inhibit state authorities from according equal protection to their citizens.” Id. at 436. (Footnote omitted) (emphasis in original.)

While section 2 of the Ku Klux Klan Act also prohibits conspiracies “for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws,” this clause is distinct from the “for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws” clause in at least two respects. The former clause refers to “all persons within such State,” while the latter speaks of “any person or any class of persons.” Moreover, the last-quoted clause has the expansive modifier “either directly or indirectly,” while the first-quoted clause does not. As pointed out in this connection in A Construction of Section 1985(c):

“It would be a mistake to read this legislative intent as limited to direct interference with government provision of equal protection. ... The Ku Klux Klan was a political conspiracy; its depredations frequently involved no component of direct obstruction of officials. The Klansmen’s object was to seize control of state governments, to reverse the process of reconstruction, and to nullify the rights recently conferred upon the freedmen by the thirteenth, fourteenth, and fifteenth amendments. Their primary weapon was political terror, directed especially against those whose votes and efforts sought to bring about just and impartial state administration. In this way they hoped to make it politically impossible for the states to accord equal protection. The moderates who drafted the statute were careful not to curtail the effect of the general clause of section 2 by words such as ‘obstructing a governmental official.’ Rather, they employed the phrase ‘directly or indirectly’ to insure that the statute would reach the schemes of conspirators designed to block equal protection by indirect and political means.” Id. at 419-20. (Emphasis in original.)

In my opinion this analysis is not contrary to either the holding or the ratio decidendi of Griffin v. Breckenridge, 403 U.S. 88 , 91 S.Ct. 1790 , 29 L.Ed.2d 338 (1971). The views expressed in this dissent are essentially those espoused in the concurring opinion of Justice Stevens, with which Justice Powell agreed, in Great American S. & L. Assn. v. Novotny, 442 U.S. 366, 381 , 99 S.Ct. 2345, 2353 , 60 L.Ed.2d 957, 969 (1979) (Stevens, J., concurring). See id. at 378 , 99 S.Ct. at 2352 , 60 L.Ed.2d at 968 (Powell, J., concurring). Neither Justice Stevens nor Justice Powell appear to consider their views in this regard as being at variance with Griffin , nor does the majority opinion in Novotny indicate that these concurrences misread Griffin . Indeed, the statement by the Novotny majority that “[sjection 1985(c) provides no substantive rights itself,” 442 U.S. at 372 , 99 S.Ct. at 2349 , 60 L.Ed.2d 964 , supports the analysis here made, namely that the Forty-Second Congress designed the Ku Klux Klan Act to guard against subversion of those rights secured to citizens by the United States Constitution. It did not create new substantive rights.

Moreover, I believe the appropriate reading of Griffin is that stated as follows in A Construction of Section 1985(c):

*1024 “The Court’s decision that the acts alleged in Griffin stated a section 1985(c) cause of action accords with the original purpose of the statute. The defendants in Griffin assaulted the plaintiffs on the highway on the mistaken impression that the driver was a civil rights worker. There was no hint of state action in any of the three possible forms: no state officers were involved by action or inaction, no state authorities were coerced, influenced, or impeded in the performance of their duty toward the plaintiffs, and no conspiracy existed so massive as to supplant state authority. Nevertheless, the purpose of the defendants was in part to drive civil rights workers from the state, and thereby to make it less likely politically that the state would carry out its duty of equal protection to blacks. This purpose falls squarely within the scope of conspiratorial designs that prompted the Forty-Second Congress to pass the Ku Klux Klan Act.

ÍÍ

“... The Court’s holding does not suggest that conspiracies of a wholly different purpose and effect from those motivating the framers of the statute — for example, private acts of discrimination in employment — are also within the statute’s reach. The Griffin Court insisted as much by expressly recognizing the necessity of ‘giving full effect to the congressional purpose’ by restricting the scope of the action in the manner intended by the sponsors of the ‘limiting amendment.’ In order to decide the Griffin case, it was not necessary to explore the full extent of the limiting amendment — the requirement of discriminatory animus sufficed for Griffin’s purposes — but the opinion endorses, in principle, the restriction of section 1985(c) in accordance with its extensive legislative history.” Id. at 425-27. (Footnotes omitted) (emphasis in original.)

In this case there is not only no evidence that these defendants had the purpose of denying plaintiffs any of those rights that the United States Constitution secures against private (or public) abridgement (such as the right to be free of the badges of slavery or to travel interstate), but there is also no evidence of any purpose to directly or indirectly deny plaintiffs the protection of any laws. There not only was no direct interference with law enforcement, there was no suggestion that defendants were attempting to prevent plaintiffs from exercising or achieving any political influence or governmental power or to create a climate of opinion or situation in which governmental authorities would be unwilling or unable either to protect plaintiffs in the exercise of their legal rights or to afford plaintiffs equal governmental treatment or protection.

Nor, in my view, has there been any showing of the requisite class based animus. While I agree with the majority that a purely racial animus is not the only class based animus reached by the Ku Klux Klan Act, I nevertheless- believe that the animus reflected in this case is far removed from that which the Act intended to protect against. As one of the above-quoted passages from A Construction of Section 1985(c) correctly observes:

“The Klansmen’s object was to seize control of state governments, to reverse the process of reconstruction, and to nullify the rights recently conferred upon the freedmen by the thirteenth, fourteenth and fifteenth amendments. Their primary weapon was political terror, directed especially against those whose votes and efforts sought to bring about just and impartial state administration.”

The Ku Klux Klan Act, of course, was designed to combat such phenomena. Consistent with this evident design, I would require that the animus, whether directed at individuals or a class, be related in some manner to race (or perhaps some other analogously immutable class characteristic). Under this theory, the Act would also extend to those harmed either because of their actual or perceived, present or potential, allegiance with a discriminated-against race (or similar class) or because of their efforts to secure on behalf of such race (or similar class) the rights which the United *1025 States Constitution guarantees against governmental denial on account of race (or similar characteristic) or the rights, such as freedom from the badges of slavery, which the United States Constitution protects against private infringement.

I do not denigrate the right of individuals not to belong to unions, nor do I suggest that the right to work on a job not restricted to union members is unworthy of protection against unlawful interference. And, I cannot accept the proposition that there has been no significant discrimination or violence against nonunion workers. But it is plain to me that this was not the sort of discriminatory deprivation of rights that the Ku Klux Klan Act was designed to prevent.

I also agree with Judges Rubin and Williams that, for the reasons stated by them, the majority errs in its reliance on the commerce clause as a source of congressional power to enact the Ku Klux Klan Act, so as to reach purely private conspiracies directed at purely private ends unrelated to rights protected by the United States Constitution. Such reliance at least indirectly undermines the majority’s reading of congressional intent concerning the scope of section 1985(3). At the very least, reliance on the commerce clause bespeaks a serious doubt as to the existence of any other source of congressional power sufficient to support the Ku Klux Klan Act as interpreted by the majority. We are cited to no legislative history, or other contemporary evidence, that Congress intended to invoke its power under the commerce clause, and it is beyond dispute that congressional power under this clause was then considered far more limited than it is today. Accordingly, since Congress did not purport to act under the commerce clause and yet considered it was acting constitutionally, a strong inference arises that Congress did not intend the Ku Klux Klan Act to have the broad reach ascribed to it by the majority. .

Moreover, we are cited to no decision of the Supreme Court that has sustained under the commerce clause an act of Congress not by its terms directed at interstate or foreign commerce, or matters affecting them, or expressly stated to be enacted pursuant to the power to regulate commerce. To do so when the legislative history, and other contemporary evidence, plainly indicate that Congress was relying on other constitutional sources of power, seems to me to be a most serious error. To regulate only conduct in or affecting interstate commerce is quite a different proposition from regulating conduct irrespective of its relation to interstate commerce. Under Section 8 of Article I, it is Congress, not the courts, that is given the “power” “to regulate commerce.” When the courts “sustain” under the commerce clause an act of Congress plainly not intended as an exercise of the power to regulate commerce, an act not limited to conduct in or affecting commerce but rather applying equally to conduct within and without the scope of the commerce power, then the courts have made the decision, which the Constitution committed to Congress, to regulate interstate commerce. The majority relies on Chief Justice Marshall’s classic formulation in McCulloch v. Maryland, 4 Wheat 316, 421, 4 L.Ed. 579, 605 (1819), but overlooks the import of the opening phrases, “Let the end be legitimate, let it be within the scope of the constitution. .. . ” Here, the “end” which Congress sought to achieve was not the regulation of commerce. It stands McCulloch v. Maryland on its head to say that an “end” not intended by Congress, and which Congress was not required to intend, can be used to sustain, and in sustaining to transform, an act of Congress taken in the exercise of distinctly different constitutional powers.

Concluding, for the above-referenced reasons, that plaintiffs have no cause of action under 42 U.S.C. § 1985 (3), I find it unnecessary to reach the other issues addressed in the majority opinion and in the dissent of Judges Rubin and Williams.

. Comment, A Construction of Section 1985(c) in Light of Its Original Purpose, 46 U.Chi.L. Rev. 402 (1979).