UNITED STATES v. PRICE

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Argument of Thurgood Marshall

Chief Justice Earl Warren: Number 60, United States, Appellant versus Cecil Ray Price et al.

Mr. Solicitor General.

Mr. Thurgood Marshall: Mr. Chief Justice, and may it please the Court.

These cases, as all the world knows, arise out of a brutal incident during the summer of last year in the town of Philadelphia in the County of Neshoba in the State of Mississippi which culminated in the murder of three young civil rights workers; Michael Schwerner, James Chaney and Andrew Goodman.

These federal prosecutions are brought under Sections 241 and 242 of the Criminal Code in which some 18 persons -- three of them public officials, are accused of having joined together to deprive the three young victims of their civil rights.

The actual facts cannot be detailed because no trial has taken place and the evidence has not been deduced.

All of that's before the Court today is a bad charge consisting of two indictments.

The only question here is whether those indictments, assuming the facts alleged can be proved, state offenses against the United States.

The overall charge is that the 18 defendants conceived and executed a criminal plan directed against the three victims.

It is alleged that the three of the defendants, namely the sheriff of Neshoba County, his deputy, and a local policeman used their official powers to release the victims who were in state custody, turned them over to a lynch mob, which one of the officers had shielded by his presence with the view that they'd be summarily punished without benefit of trial and has alleged in defiance of the Due Process Clause of the Fourteenth Amendment.

The indictment in number 59 is only one charge, charges a conspiracy that was in charged to be in violation of Section 241, the whole of that indictment was dismissed as to all defendants.

The first count of indictment in number 60 is the same conspiracy as charged as a violation of the general conspiracy statute, Section 371 of the Criminal Code, as a conspiracy to commit the offense defined in Section 242.

That charge was sustained by the District Court as to all defendants.

The three other counts of indictment -- the indictment in number 60 charged all the defendants with substantive violations of Section 242 by executing the criminal plan with respect to each of the three victims.

And the District Court sustained those counts as to the three state officials, the three state law enforcement officers but dismissed on all three counts as to all other defendants because --

Justice John M. Harlan: Were the individuals -- the private individuals and the substantive counts charged as “aiders and abettors”?

Mr. Thurgood Marshall: Not specifically so except in one portion, the “aider and abettor” statute, we take the position, is they're whether or not 242 -- 242, each one says 242, in violation of Section 242.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: Yes sir, it's our position because when -- as we see it, when state officers are involved, and then the conspiracy moves in charging the state officers and the individuals together, but it would not apply of course unless the state officers were there.

And in this case, the state officers are there.

I think I can clear it up a little later on that.

The Government, on both indictments, is the allegation of a conspiracy to willfully subject the victims to the deprivation of “their right, privileges, and immunities secured and protected by the Fourteenth Amendment to the Constitution of the United States, not be summarily punished without due process of law by persons under color of the State of Mississippi”.

That's in the indictment -- that particular section is quoted from page 12 and 13.

And before going any further, I want to explain the relationship between this case and more particularly number 59 in the Guest case to be argued next.

This case is really the preamble to the Guest case.

There is no Guest case unless we prevail in this case on the main point which is, that Section 241 protects Fourteenth Amendment rights.

The two cases are thus very closely related, yet I would like to stress the differences.

The basic factual difference of course is that here, the state itself through its law enforcement officers and their confederates, charged with invading the civil rights of citizens, while in the Guest case, the interference is directly attributable solely to private individuals.

Here, there is no question that violation to the Fourteenth Amendment alleged, there's no question about it as I see it.

And indeed, the District Judge so found by sustaining the charge of conspiring to violate 242 which he held as to all of them.

The only question in this case I repeat is whether 241 encompasses Fourteenth Amendment rights at all, and that is not a Constitutional question.

At least since the Screws case, there can be no doubt whatever about the power of Congress to make it a federal crime for state officers to deprive citizens of their constitutional rights even if the conduct also violates state law, the sole question is one of statutory construction.

Did Congress mean to reach violations of the Fourteenth Amendment in Section 241?

On the face of the statute, it is difficult to see how any such question ever arose.

Indeed, Section 241 punishes interference with exercise or enjoyment of “any right or privilege secured by the Constitution or laws of the United States.”

And certainly, the Fourteenth Amendment is a part of that Constitution, and certainly, the Fourteenth Amendment confers “rights or privileges”.

Why would Fourteenth and Fifteenth Amendment rights not be embraced by the provision?

One could imagine that doubt at the statute had been written before the Fourteenth and Fifteenth Amendments became part of the Constitution, but that's not the fact.

On the contrary, Section 241 was enacted in May of 1870 less than two years after the ratification of the Fourteenth Amendment and only two months after the ratification of the Fifteenth Amendment.

As a matter of fact, Section 241 is a part of the first civil rights law passed after the adoption of the amendments.

The natural assumption is that the new statute was peculiarly concerned with protecting these new constitutional rights.

Is there anything in the conditions of the time that suggested Congress was focusing on rights derived from the relationship of the citizen to the national Government rather than the relationship between the citizen and the state Government?

The time, I repeat, was 1870.

This was a reconstruction measure.

The problem then was of assuring equal rights and protection to the new freedmen who were the victims of racial antagonism against that background, it seems obvious, that when Congress spoke of constitutional rights had meant to include those derived from the Due Process and Equal Protection Clause of the Fourteenth Amendment, and the right to freedom from racial discrimination, exercise of the right to vote guaranteed in the Fifteenth Amendment.

As a matter of fact in the case of Strauder against West Virginia and it seems -- though these two cases, Strauder and Ex parte Virginia constantly come forward again but I think it's well the time to read it again.

The Fourteenth Amendment -- I mean Strauder says, the Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect, it speaks in general terms and those are as comprehensive as possible.

Its language is prohibitory, but every prohibition implies the existence of rights and immunities.

Prominent among which is the immunity from inequality of legal protection either for life, liberty, or property.

Any state action that denies this immunity to a colored man is in conflict with the Constitution.

And in Ex parte Virginia, Mr. Justice Strong continued, “One great purpose of these amendments was to raise the colored race”, he is speaking of the Thirteenth and Fourteenth Amendment, “was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States.

They who intended to be and they really are, limitations to the power of the States and enlargement of the power of Congress.”

I repeat, enlargement of the power of Congress.

“They have got to some extent declaratory of rights, and though in form prohibitions, they imply immunities such as maybe protected by congressional legislation.”

Now that was the real problem.

It was not the problem of interference with the homesteading laws or the federal privilege, to inform on violations of tax laws, the indictment alleges here more than ordinary murder for personal reasons by a group of individuals, some of whom happened to be state officers.

One, it is alleged that the state law enforcement officers were acting under code of their office.

And two, it is further alleged that they use their official powers to release state prisoners, turn them over to a lynch mob which was shielded by the presence of another state officer, so that they could be summarily punished without benefit of trial.

This, to my mind puts this case warily within the rule announced in the Screws case, and indeed within the rule announced in the Williams case at least insofar as Mr. Justice Douglas' opinion was concerned.

In the Screws case, there was no problem with the indictment, no court found any problem with indictment in that case.

And in the Williams case, if you read the indictment, the indictment was closely similar to the one here.

Finally, is there something in the debates underlying the enactment of Section 241 that contradicts the entirely clear text of this statute, which I think most certainly clearly applies here.

Despite the language and the historical context with point unmistakably to a congressional intent to protect the Fourteenth and Fifteenth Amendment rights, as rights and privileges, is there some evidence buried in the legislative history that shows a different focus?

There is nothing of the kind.

What became Section 241 was an amendment to the Enforcement Act of 1870 proposed by Senator Pool of North Carolina, he proposed the amendment.

And he made his purpose very clear and there's nothing in the congressional record to the contrary, on this particular amendment.

The only relevant speech is his own, when he first explained the object of his amendment, we have reproduced the entire speech of Senator Pool in an Appendix to our brief on the merits and it bails out what I have said.

The Senator begins by making it clear that this is a reconstruction measure.

It is entering a plan of new phase and reconstruction that is, he says, “To enforce by appropriate legislation, those great principles upon which the reconstruction policy of Congress was based.”

He then tells us more particularly, the conditions he is concerned about.

And he says “The equality, which by the Thirteenth, Fourteenth, and Fifteenth Amendments has been attempted to be secured for the colored men, has not only subjected them to the operation of the prejudices which had theretofore existed, but it has raised against them still stronger prejudices and stronger feelings in order to fight down the equality by which it is claimed they are to control the legislation of that section of the country.

They were turned loose among those people, weak, ignorant, and poor.

Those among the white citizens there who have sought to maintain the rights which you have thrown upon that class of people, have to endure every species of proscription, of opposition, and of vituperation in order to carry out the policy of Congress, in order to lift up and to uphold the rights which you have conferred upon that class.

It is for that reason not only necessary for the freedmen, but it is necessary for the white people of that section that there should be stringent and effective legislation on the part of Congress in regard to these measures of reconstruction”.

Though most of his speech is directed to the Fifteenth Amendment, Senator Pool plainly puts Fourteenth Amendment rights and particularly those derived from the Due Process and Equal Protection Clauses on the same footing.

This is first, there is first, the long passage quote in our brief at page 40 and 41, which he emphasized the word 'deny' in those clauses.

And he says, “The word deny is used not only in this Fifteenth Amendment but I perceive in the Fourteenth Amendment, it is also read”.

And again later, when he is speaking of the need to teach or to reach unofficial conspiracies, the Senate takes explicitly refers to the Fourteenth Amendment.

And he says, “But sir, individuals may prevent the exercise of the right of suffrage, individuals may prevent the enjoyment of other rights which are conferred upon the citizen by the Fourteenth Amendment, as well as trespass upon the right conferred by the Fifteenth.”

This last statement from Senator Pool's speech, emphasizing his concern with unofficial action, particularly conspiracies like the plan which he explicitly mentions, suggests the only argument against reading Section 41 to reach Fourteenth and Fifteenth Amendment rights.

It has been said that because this statute, unlike 242, is not confined to acts done under color of law to officials.

It cannot have been meant to protect Fourteenth and Fifteenth Amendment rights, which can only be invaded by state officers or at least by persons acting color -- under color of state law.

And Mr. Justice Douglas pointed out in his opinion for the four justices in the Williams case, the conclusion does not inexorably follow from the premises, even if the Congress of 1870 had believed that it could not reached private individuals who interfered with the exercise of Fourteenth and Fifteenth Amendment rights, but which to protect the right one provision which protected all constitutional rights, it might well have written the same words we find in Section 241.

They are -- or rather they collect the Constitution itself, operate to confine the class of those who had compassed -- to commit the crime where the Fourteenth or Fifteenth Amendment was involved.

That is indeed exactly what Congress did.

But the true explanation is that neither Senator Pool nor the Congress of 1870 saw any problem with this.

They thought rightly or wrongly, and we believe they were right as we will argue in the Guest case, that they could Constitutionally reach private conspiracies hostile to the Fourteenth and Fifteenth Amendments.

You cannot reach Senator Pool's speech without reaching that conclusion.

And if any proof or further proof were needed, you only have to look at the Klan Act of 1871 which this Court invalidated in United States against Harris.

Now as I have said, we think the Congress of 1870 was right in its premise, but it does not automatically follow that the question in this case depends upon a case where there are no state officers involved.

If only persons acting under color of law can be reached, enforced -- in enforcing the Fourteenth and Fifteenth Amendments, then Section 241 must be read accordingly.

It would be nonsense I say, to say that the Congress of 1870 did not mean to reach any interference with Fourteenth or Fifteenth Amendment rights, because they thought they were reaching something that the inference would not allow them to reach.

I say that on the particular point involved here, that first of all I've -- we have to make our position clear.

And that we are not here asserting that Congress intended to cover every crime committed under state law, and indeed in all of the briefs on the other side is alleged that this is peculiarly state crime, or what have you.

But I respectfully recall the Court's attention to the 1884 decision in the Waddell case.

And speaking of the same provision said, “The right here guarantied is not the mere right of protection against personal violence.

This is the result of an ordinary quarrel or malice, would be cognizable under the laws of the state and by its courts.

But it is something different from that.

It is the right to remain on the land in order to perform the requirements of the act of Congress, and, according to its rules, perfect his incipient title”.

And under the Waddell case, I think the same provision would be here if the defendants in this case where merely out to commit an ordinary crime “as a result of an ordinary quarrel or malice” it would be strictly state, but that is not the case.

I believe as I have said earlier, that the two cases which control this case, are the Screws case and that United States against Williams.

And I think it's very interesting that everybody relies on United States against Williams.

And I would like for a moment to explain our position as to the case in the first place, the decision was four to four with Mr. Justice Black concurring on a different point.

But as to the points involved in this case, it was definitely a four to four decision.

And the language in the -- what is labeled in the dissenting opinion of Mr. Justice Douglas concurred in by Mr. Justice Reed, Mr. Justice Burton and Mr. Justice Clark, they traced the whole history of these sections, both of the sections and brought the sections up to date, both 19 and 20.

And I have no need to go back further in this because in both of the opinions in the Williams case, Senator Pool was referred to, the only addition we have made in our position in this case is to prick more fully the whole argument or rather the whole speech made by Senator Pool.

And in the Williams case, after the language, the constitutional history -- the congressional history rather was reviewed and the Screws case was reviewed.

That opinion made it quite clear that Fourteenth Amendment rights were to be protected.

And in this particular case, you add to fact that as to the Fourteenth Amendment rights in the three latter counts in the number 60 case, the court actually held the state officers to be liable.

And then with the same vein, it comes back and says, “But it does not apply.”

It seems to me that you can't say the Fourteenth Amendment applies in one place and it does not apply in the other particular position.

The emphasis in the -- the second emphasis was on Senator Pool's speeches which we have quoted and in the William's case, it was pointed out that as Mr. Justice Rutledge stated in the Screws case, there is no difference between Section 19 and Section 20 so far as the basic rights guarded are concerned, the coverage of the two sections is not coterminous.

The difference is not merely on the fact that's 19 covers conspiracies and 20 covers substantive offenses.

Section 20 extends only to those who act under color of law, while 19 reaches two or more persons who conspire to injure any citizen in the enjoyment of any rights or privilege secured to him by the Constitution.

The reach of 20 over deprivations of rights protected from invasion by private persons, is therefore in this one respect less than that of 19.

But this is no comfort to the respondents in the present case.

It certainly cannot be doubted that state officers or those under -- acting under color of state law who conspire to wring confessions from an accused by force and violence, are included in the phrase “two or more persons” within the meaning of Section 19.

And that from the Williams case, it seems to me applies in this particular case and if there are no further questions, I would save some time for rebuttal.

Chief Justice Earl Warren: Mr. Watkins.

Argument of H. C. Mike Watkins

Mr. H. C. Mike Watkins: Mr. Chief Justice, and may it please this Honorable Court.

Half of the appellees directing our remarks furnished to the matter of jurisdiction in case number 59 as stated in our brief.

We believe certainly that this Honorable Court has jurisdiction to review on direct appeal case number 59.

The District Court in regard to case 59 in dismissing the indictment, holding that it did not state the cause of action against the United States, as the charge was made on the 241 restricted in his opinion that 241 reached interferences with the rights and privileges of the citizen in relation to the Federal Government, rights and privileges arising from the substantive powers of the Federal Government.

In case number 60, it already stated, the indictment stands as against the officers -- the three officers in that case.

The indictment also stands in count one against the all of the defendants as the charge was in violation of 371, Title 18 of the United States Code.

The statutes, if it pleases the Court, were before the District Court as we understand it, was 241, 371, and 242.

No indictment in either case made in reference to Section 2, Title 18 of the United States Code having to do with the aiding or abetting statute.

Our proposition then on behalf of the appellees is that Section 241 of the Criminal Code does not reach interferences with the exercise of natural rights of the citizen or the inhabitant, and such interferences are not encompassed by the Due Process Clause of the Fourteenth Amendment.

Certainly, equality and equal protection under the law is a right and privilege of every American citizen and all inhabitants.

And it stands without debate that it is the duty of every Republican Government to protect that equality and right under the law of every citizen and every inhabitant of this -- our great country.

But as it has to do with harm or injury by one citizen as against another citizen in regard to his natural rights, we respectfully submit that punishment for that type of alone is reserved to the respective states under the Tenth Amendment of the Constitution.

The Fourteenth Amendment guarantee is a guarantee against encroachment of the individual rights in regard to encroachment by the state.

242 certainly reflects the power of the Congress to pass laws to enforce any encroachment of the Fourteenth Amendment guarantee, and they did that in passing Section 242, the color of law statute.

Therefore, generally our contention is that 241 reaches interferences with the exercise of those rights and privileges arising from the substantive powers of the Federal Government.

Those rights and privileges arising because of the relationship of the victim and the Federal Government and not the general guarantee of the Due Process Clause and equal protection of the Fourteenth Amendment encompassed by 242 as action of the state.

We feel that the cases of Logan, Yarbrough, William and Classic, Saylor, Waddell, Quarles and others cited in the brief, support that position.

Let's make reference a moment to the statute 242 and 241 in regard to the differences in those two statutes.

241 create a misdemeanor.

It speaks of color of law directing its meaning directly to the Fourteenth Amendment, having to do with the guarantee against encroachment by the state.

It speaks of color or race --

Justice John M. Harlan: You're referring to 242 now?

Mr. H. C. Mike Watkins: Yes Mr. Justice, 242.

Justice John M. Harlan: -- or 241?

Mr. H. C. Mike Watkins: Excuse me, I'm referring to 242.

It creates a misdemeanor.

It speaks of color of law.

It has to do with color or race.

It has to do with the inhabitants in addition to the citizen.

It punishes criminal acts, not conspiracies -- 241 has to do with conspiracy only, not substantive criminal acts.

It has to do with the felony, wherein 242 has to do with a misdemeanor.

It makes no reference whatsoever to color of law as does 242.

It deals with the rights of citizens and it creates an independent crime going on the highway to do the wrongful acts stated therein.

Therefore, as to the language of the indictment in Number 59, when that language speaks of color of law -- color of law is referred to both indictments, in number 59 and in 60, but when its used in number 59, that language alone, we contend respectfully, cannot extend 241 to the Fourteenth Amendment again, cannot make a misdemeanor or felony by simply using the terminology on the -- these things were done on the color of law, when it's drawn under 241.

Justice Hugo L. Black: 241 is the felony?

Mr. H. C. Mike Watkins: Mr. Justice I did --

Justice Hugo L. Black: 241 is a felony?

Mr. H. C. Mike Watkins: Yes, Mr. Justice.

241 is a felony and 24 --

Justice Tom C. Clark: (Inaudible)

Mr. H. C. Mike Watkins: Yes sir, it was.

Justice Tom C. Clark: 242 was held against the officers but not the civilians.

Mr. H. C. Mike Watkins: That is correct, Mr. Justice.

242 stands as against the officers and the charge of the general conspiracy and under 371 now stands against all the officers and the private individuals, if Your Honor please, at this time.

Justice Tom C. Clark: What was the theory of dismissal on 242 against civilians?

Mr. H. C. Mike Watkins: We contend in number 60 if Your Honor please that the theory of dismissal of 242 as against the private individuals as we understand the court's ruling had to do with the matter of fact and that the indictment did not charge anything that they did in fact, or did not make them in fact or de facto acting under color of law and that they did not flash a badge as in Williams versus United States or did not represent themselves to be officers of the law.

We understand that to be the reason for the dismissal of the private individuals under 242.

Justice John M. Harlan: Assuming that the indictment (Inaudible)

Mr. H. C. Mike Watkins: Mr. Justice, if the indictment had specifically allege that the private individuals were aiding and abetting and had directly brought Section 2, Title 18 U.S.C. before the Federal District Court, is my honest opinion, at that indictment in regard to the aiding and abetting statute would have stood.

Justice Tom C. Clark: Do you think they'd have to use those words -- aiding and abetting?

Mr. H. C. Mike Watkins: Mr. Justice, I feel like that the District Court could not assume the position of prosecuted that it was the duty of the department to direct the violations as going against Section 2, Title 18, the aiding and abetting statute.

If the Justice Department intended that that statute be used, it should have been brought to the attention of the District Court, it's our position in that regard --

Justice William J. Brennan: I don't quite get that, you mean, brought to the attention without any expressed allegation of the indictment?

Mr. H. C. Mike Watkins: Mr. Justice, we feel like that any indictment sense, it referred that these violations are in violation of 242, 241 and 371 that that same allegation should have been made in regard to Section 2 --

Justice William J. Brennan: In the indictment itself?

Mr. H. C. Mike Watkins: In the indictment.

Justice William J. Brennan: Yes.

Mr. H. C. Mike Watkins: Yes sir.

Justice Tom C. Clark: The indictment -- the indictment did allege that the officer released these parties?

Mr. H. C. Mike Watkins: As the plan and purpose, Mr. Justice, that indictment in number 59 and the other indictment for that matter went on to say that as a matter of plan and purpose that it was the purpose of the law enforcement officers that these main victims be released and that they be intercepted after their release and that assault and battery and murder be committed.

That was the (Voice Overlap) --

Justice Tom C. Clark: Not -- not as private individuals?

Mr. H. C. Mike Watkins: All the defendants name --

Justice Tom C. Clark: By all of them?

Mr. H. C. Mike Watkins: Yes sir.

Justice Tom C. Clark: Including officers, as well as private --

Mr. H. C. Mike Watkins: Yes sir.

It is crystal clear to us that Section 242 encompasses Fourteenth Amendment rights and that certainly, it was the purpose of the Congress to reach actions on the color of law under 242 -- 242 along with 371, 371 making the private individuals vulnerable to prosecution as they act with law enforcement officers under the general conspiracy statute.

Then our contention is that without overlapping, 241 should be restrictive to federal-type rights.

It is our position that in effect, the contention of the Government here is that 241 should reach rights or interferences with the right to be free of assault and murder, if it not be restricted.

Surely, it would be conceded in cases like Yarbrough, Logan, Quarles and others that this Honorable Court emphasized, federal type rights or relationship of the victim and the Federal Government.

No state action was involved in those cases.

The Fourteenth Amendment rights, we contend that only state action can deprive a citizen or inhabitant our Fourteenth Amendment rights as the Fourteenth Amendment read.

Let's take for instance about our racial school system.

The private individual not acting under color of law has no duty to furnish a non-discriminatory education to others but the state has that duty on the Fourteenth Amendment of the Constitution -- Equal Protection Clause, in reference thereto to furnish nondiscriminatory education.

In the Wheeler case, the right then involved was to move from place to place, ingress and egress therefrom.

The principle of 241 was not extended because it had to do with a natural right.

In the Hodges case was a conspiracy --

Justice John M. Harlan: What was a natural right?

Mr. H. C. Mike Watkins: A natural right.

The right not dependent upon the Constitution of the United States, the natural right of man that is being endowed by his creator and doesn't depend upon the government.

That right to be free of assault and battery, free of false imprisonment and murdered -- a natural right.

In the Hodges case was a conspiracy to prevent citizens from disposing of their labor as they sought it on the labor contracts.

The right to work is not dependent upon the Constitution and 241 was not -- the principle of 241 was not extended in that case.

In the Yarbrough case was a habeas corpus case, a charge in regard to intimidation of citizens relative to the right to vote for federal officers.

Section 241 was extended, it reached that type of interference because it's an interference with the right arising based upon the substantive powers of the Federal Government.

The court in effect held that in that case that the right to vote was of such supreme importance, that it was necessary to the governmental function that it was of such importance that the Fifteenth Amendment was passed and guaranteed that there would be no encroachment by the state or by the Federal Government against that right to vote.

In the Yarbrough case --

Justice Potter Stewart: Suppose until the Fifteenth Amendment, the right didn't exist.

Mr. H. C. Mike Watkins: Mr. Justice, the right to vote for a Congressman arises on the Article 1 Section 2 and 4 of the United States Constitution.

The inherent make up of the Government under the Constitution gives the citizen the right to vote without regard, we respectfully submit, to the Fifteenth Amendment.

The Fifteenth Amendment, as the Fourteenth was a guarantee that there would be no encroachment by the state or the Federal Government on that right to vote, such as the case's holding that the respective state has the right to set the standard of voting, but if that standard through color of law be repugnant to the Fifteenth Amendment, it will be stricken down.

In the Yarbrough case, and with permission -- a quote from the Yarbrough case, in reference to cases in this Court in which the power of Congress under the first section of the Fourteenth Amendment has been held to relate alone to acts done on the state authority, can afford petitioners no way in the present case, but while it may be true that acts which are a mere invasions of private rights which are not committed by anyone exercising state authority, are not within the scope of that amendment, it is quite a different matter when the Congress undertakes to protect the citizen in the exercise of rights conferred by the Constitution of the United States essential to the healthy organization of the government itself, and the habeas corpus writ was denied.

Thus, the extension of the protection of 241 in the voting right cases rest on the Fifteenth Amendment, we contend that it does not as perhaps no difference in the guarantee of the Fourteenth Amendment and that of the Fifteenth Amendment and that it guarantees there will be no encroachment by the state and same language in the Fifteenth including the state and the Federal Government.

We contend that the right to vote arises from other sections of the Constitution.

Justice John M. Harlan: Well, what section?

Mr. H. C. Mike Watkins: Article 1, the inherent makeup of the government as set out by Article 1, Section 2 and 4.

Justice John M. Harlan: Could you give -- tell us the specific provisions of the Constitution which you consider are encompassed in 241.

Would you say this would reach Fourteenth Amendment?

Mr. H. C. Mike Watkins: Your Honor, we contend that --

Justice John M. Harlan: What are the natural rights or these Constitutional rights?

Mr. H. C. Mike Watkins: We contend that those rights arising from the exercise of the substantive powers of the government, whatever they may be is reached by 241 and its therefore be restricted to those rights and privileges arising from the exercise of the substantive powers of the government or the relationship of the victim and his government whatever federal type right that might be is reached by 241 such as taking in a prisoner from the custody of the United States Marshal, the right to vote, the right to homestead land, any other right arising because of the substantive powers of the Federal Government to that individual and his relationship.

And that is without regard to any particular section, as we understand it Mr. Justice.

Justice John M. Harlan: Do you find that, as it reflected to me that debates you mentioned, 241?

Mr. H. C. Mike Watkins: Mr. Justice, we feel like that the decision as cited in the appellee's brief leading up to the United States versus Williams reflects that the court from time to time sought to restrict 241 without regard to what the particular right might be to those rights and privileges arising from the substantive power of the Federal Government.

And in that regard, we do feel like that the case is leading out to United States versus Williams brought -- followed that theory.Yes sir?

Unknown Speaker: (Inaudible)

Mr. H. C. Mike Watkins: In the Hodges case --

Unknown Speaker: (Inaudible)

Mr. H. C. Mike Watkins: There was a charge under 5508, which is the same as 241 now, in regard to intimidations relative to the right to work.

The court in effect held in that case that the Fifteenth Amendment and the Fourteenth Amendment were restricted to state action and that there was no state action involved in regard to the right to work.

It was a natural right and was protected by the laws of the respective states.

In the Quarles case, it had to do with the right of one citizen to inform on another citizen concerning the violation of Internal Revenue Code, in regard to a distillery.

And the Court held that that right, the right to inform was a Constitutional right necessary for the enforcement of the substantive powers of the Federal Government, and that principle of 241 should reach that type of circumstance and be protected.

And quoting from that case such rights, “arises out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action,” and citing the Logan case also.

In the Logan case as mentioned a moment ago, a prisoner was in custody of a United States Marshal, and the main defendants allegedly took the prisoner from the custody of the United States Marshal and committed wrong against this person.

The Court in effect held there that it was interference, a direct interference with the substantive powers of the Federal Government to protect a prisoner in federal custody.

The Waddell case as mentioned in the initial argument by the Government has to do with a right of homesteading land.

And it might be said in that case that it makes no difference whether the land is being homesteaded by a citizen or inhabitant.

The principle there sought to be at best in regard to protection afforded by 241 was that the protection of the title was wholly dependant upon a federal act, the Homestead Act, those -- the exercise of those rights and privileges arising from the substantive powers of the Federal Government.

What are the substantive powers of the Federal Government?

We contend that they are those powers necessary for the completion of the meaning and purpose of the Constitution whether it would be expressed by some particular section of the inferred rights arising there from as stated by the earlier cases, the right to vote, the right to protection and the custody of a U.S. Marshal and so on, the freedom from self-incrimination, double jeopardy and so on -- and yes, due process as to the guarantee of the Fourteenth Amendment against encroachment by the state.

On page seven of the Government's brief, it is contented and they say due process rights have been made definite by decisions of this Honorable Court and they cite the Screws case and United States versus Williams, and certainly due process in regard to those cases were made definite but we respect to point out that those cases had to do with 242 and 371.

It's interesting to note that in the Screws case, there was an original charge in that case under 241 as in the case at bar, 241 was dismissed in the Screws case in the lower court and the Government abandonment in regard to the appeal.

And when it reached the higher court, the sections 242 and 371 were involved in that case.On page 9 of the Government's brief, it's contended that -- and the question is asked, “Does 241 to reached invasion of rights guaranteed by the Fourteenth Amendment?”

Actually, we could say that, on account of an individual if he does not act under color of law invade the Fourteenth Amendment rights.

The protection we contend extended by 241, that is the Fourteenth Amendment and the Fifteenth Amendment are not exponents of 241 as such.

On page 10 of the brief, the Government contends that 241 reaches the Fourteenth Amendment guaranteed or that the rights guaranteed by the Fourteenth Amendment comes within 241 because of the language of the statute, its text and context and its legislative history.

And then in the Government's brief as stated in the Appendix, the entire speech made by Senator Pool is there printed.

We respectively call the Court's attention to what Mr. Justice Frankfurter said in regard to the legislative history of 241 in United States versus Williams and we asked permission to read a short quotation from that case.

Mr. Justice Frankfurter said, “We based our decision on the history of 241.”

They talked about the history, that's the history he based it on.

“We based our decision on the history of 241, its text and context, the statutory framework in which it stands, its practical and judicial application—controlling elements in construing a federal criminal provision that affects the wise adjustment between state responsibility and national control of essentially local affairs.

The elements all converge in one direction.

That lead us to hold that Section 241 only covers conduct which interferes with rights arising from the substantive powers of the Federal Government.”

We respectfully submit that Mr. Justice Frankfurter considered the legislative history when he made that statement.

Justice Abe Fortas: Counsel, may I ask you this question, suppose that this indictment had charged that the purpose of the conspiracy was to prevent the persons who were murdered from leaving the State of Mississippi and returning to let's say New York.

Would that make any difference in your analysis?

Mr. H. C. Mike Watkins: Mr. Justice, please sir, in a case referred to earlier, they had the right to do with ingress and egress and the move from place to place.

We respectfully submit that the move from place to place, as long as there is not some interference with the interstate commerce would be also a natural right of every individual.

And that --

Justice Abe Fortas: If this was property going from Mississippi to New York, it would be interstate commerce, wasn't it?

Mr. H. C. Mike Watkins: Whether it would be an interference with the substantive powers of the Federal Government in regard to the power to regulate interstate commerce, I would feel like it would depend upon the charge in the indictment to some extent, but as long as it would have to do with moving from place to place as the right of every individual, that it would a natural right, and the principle of 241 would not extend to it.

Justice Abe Fortas: I don't want to pressure you, but I am having difficulty with the concept of natural rights in this context and that's the reason for my question because I'm trying to postulate an indictment in which the interference is specifically alleged to be an interference with the movement of people from one state to another state, which in ordinary legal parlance, is considered to be interstate commerce.

Mr. H. C. Mike Watkins: Yes.

Justice Abe Fortas: And what I'm trying to find out from you is whether you would consider that to be within this category of natural rights or whatever they may be or whether you would consider those to be an interference with a federally protected right, I mean they have a right to move from state to state.

Mr. H. C. Mike Watkins: Well, we have one case cited in the appellees' brief wherein it has to do with a Treaty of China wherein the certain persons named therein were charged with the intimidation of certain Chinese people trying to make them move from a certain locality of a state and to move out and vice versa.

And the Court held in that case that the principle of 241 did not extend in that instance.

If we could relate it, the hypothetical more closely to interstate commerce powers, if it was an interference of the substantive rights of the Federal Government in regard to the function of the interstate commerce, and the facts were so alleged in an indictment, I have no doubt of what 241 -- the principle of 241 would reach any conduct that was charged in the indictment in such a manner as it would have to do with the interference of rights or privileges arising from the substantive powers of the Federal Government whether it would be interstate commerce or any other based on Federal Government power.

It is the best I can answer that question.

On page 13 of the Government's brief, they contend -- the Government contends that the courts prior to the Williams case taken for granted that 241 covered Fourteenth Amendment rights and the reason is brought forward there that it was assumed that the courts prior to Williams presumed that it reached the Fourteenth Amendment guarantee and that the courts would determine that the conduct charged did not come within the guarantee of the Fourteenth Amendment.

We respectfully submit that whether 241 be restricted to federal type rights, or whether we say that the conduct charge does not come within the protected guarantee of the Fourteenth Amendment is exactly the same result whether the conduct charged comes within the guarantee of whether the 241 be restricted, amounts to the same thing.

If 241 is unrestricted, we feel like in effect, it would amount to an amendment of the Fourteenth Amendment by extending 241.

In that regard, we feel like that in effect, it would amount to the samething as adding the word “person” in the amendment.

In the appellees' brief on page 3, the Fourteenth Amendment first section is cited.

And with permission, we read to make our analogy.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

If we do not restrict 241 and extend it to protect the guarantee, it would in effect change it to this effect -- no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State or person deprive any other person of life, liberty, or property without due process of law.

We respectfully submit that in regard to 242 and 371 which reaches private individuals whether they act with officers or not in violation of 242, that the answer is if the penalty is not great enough in 242 or 371 rather than to try to reach a felony in Section 241, that the answer is an amendment in regard to the penalty of 242 and 371 making felonies of those sections rather than to extend 241 and try to make it reach the Fourteenth Amendment guarantee.

Whether it would be the obligation of a nation, state, or an individual, perhaps a simple analogy could be used here.

For argument's sake, let's say that A, B, or C are guaranteed to protect him from B.

But D comes in and harms C.

It's obvious that it does not come within the guarantee.

The guarantee of the Fourteenth Amendment is that the state B will not encroach upon the right of the individual in regard to equal protection of the law and due process of law.

But whether or not the conduct charged in the indictment comes within the guarantee of the Fourteenth Amendment of whether it restrict 241 to federal type rights, in result, it's exactly the same.

Justice Potter Stewart: Is it part of your argument that -- that there would be a lack of federal constitutional power for Congress to have enacted a statute as construed by the Solicitor General?

Mr. H. C. Mike Watkins: Oh no sir.

Justice Potter Stewart: Federal constitutional power under --

Mr. H. C. Mike Watkins: Mr. Justice Stewart --

Justice Potter Stewart: -- any of the Constitution or any of its amendments?

Mr. H. C. Mike Watkins: Mr. Justice Stewart, the Congress certainly had a power to enforce the Fourteenth Amendment and we say that --

Justice Potter Stewart: Yes, the Fourteenth Amendment, but I understood you to say that -- that this statute if construed by -- as the Solicitor General would have this construe it, it's not a proper legislation under the Fourteenth Amendment.

Mr. H. C. Mike Watkins: Oh no sir.

Your Honor, we intended to leave the impression that Congress certainly had the power to enforce the Fourteenth Amendment and any other amendment and that they did exactly that in passing to 242.

But that they had something else in mind in passing 241, that is a restriction of 241, in regard to the rights that has been held by the cases heretofore that it protects those rights arising from the substantive power of the Federal Government.

Certainly, we do not contend that 241 is not that it's because of vagueness or otherwise and that 241 does not serve a good purpose.

Justice Potter Stewart: Well, do you think that it would be within the constitutional power of the Congress -- Congress purporting to exercise its power, the power given to it under the Fourteenth Amendment to make it a federal offense to commit the crime of murder in any state.

Mr. H. C. Mike Watkins: Well yes -- Mr. Justice, Senator Pool in the argument that the government referred that he made at that time these sections were being passed argued at that point that all crimes committed -- that occurred while this under color of law wrong was being done should be prosecuted directly by the federal courts.

But the Congress at that time did not see fit to extend that principle.

Justice Potter Stewart: Well I -- I don't know that I understand your answer to my question.

Mr. H. C. Mike Watkins: Whether the Congress has a right --

Justice Potter Stewart: Has a power?

Mr. H. C. Mike Watkins: -- or the power to pass a law and would enable federal courts to prosecute any crime that was committed --

Justice Potter Stewart: Now, it's certainly murder, let's say Congress, over here across the way, Congress duly assembles and “We're now going to exercise our powers.

We understand it under the Fourteenth Amendment, and make it a federal offense for anybody to murder anybody else in any state of the United States.”

Mr. H. C. Mike Watkins: But, Your Honor please, the best way that I could answer that is --

Justice Potter Stewart: Do you think that's within the power given to Congress by the Fourteenth Amendment, is my question.

Mr. H. C. Mike Watkins: The best way I could answer that is that since it's not numerated as being a federal power that the Congress would have the power to pass any law that they saw fit in regard to any crime being prosecuted whether or not at that time it would be construed by the courts to be an extension of the power in regard to the reservation to the respective states under the Tenth Amendment, I do not know that.

But I do feel like that Congress would have the power to pass any law they felt necessary in regard to the protections of the guarantees upon any of the amendments.

And also prosecute --

Justice Potter Stewart: Now --

Mr. H. C. Mike Watkins: -- the crimes --

Justice Potter Stewart: I'm asking you if you think the Congress will have that power in the Fourteenth Amendment?

Or let's forget murder, let's take theft.

I suppose that's -- I suppose that if I steal your money, I'm depriving you of property without due process of law.

Mr. H. C. Mike Watkins: Your Honor, we feel like the Congress to have the power to pass the law.

We feel like the courts would hold it invalid and that it had to do with the natural right rather than those rights arising from the substantive power --

Justice Potter Stewart: I will tell you -- if you think the courts would hold it invalid, then I suppose you're saying you don't think Congress has the constitutional power to do it.

Mr. H. C. Mike Watkins: Whether the Congress has the constitutional power to pass a law stating that murder as such or theft as such would be prosecuted by the federal courts, we do not feel that the exercise of that power would be valid, no sir.

That's my opinion.

Chief Justice Earl Warren: Mr. Watkins, I understood you to say earlier that the jurisdiction over the crimes charged in this indictment under 241 was reserved to the states under the Tenth Amendment.

Did I misunderstand you or did you state that?

Mr. H. C. Mike Watkins: Mr. Chief Justice, I intended to state that the jurisdiction of this Honorable Court to review the case, in number 59, was conceded by the appellees that certainly this Honorable Court has jurisdiction in case number 59.

We do contend and we're about to make that point Your Honor that as to case number 60, we do not feel that this Honorable Court should take jurisdiction of case number 60 on direct appeal, but certainly in case number 59, there's no question about this Honorable Court having jurisdiction of the review in case number 59.

Chief Justice Earl Warren: And that's under 241?

Mr. H. C. Mike Watkins: Under 241.

And number 59 has to do with 241.

Chief Justice Earl Warren: Yes.

Mr. H. C. Mike Watkins: And number 60 has to do with 242.

Chief Justice Earl Warren: Yes.

Mr. H. C. Mike Watkins: And regard to number 60, and that being the point, there is a contention of the appellees that it was in the mind of the federal district judge that the allegation from a factual standpoint in number 60 under 242 did not bring a private individual to property within the indictment and that they had before simply a matter of fact that if the District Attorney had charged that they flashed a badge or did some other thing or even the aiding or abetting statute, they would have brought them within the 242, then of course that indictment could have stood and we feel like that was the thinking of the federal district judge at the time when he says that there was nothing alleged to make the private individuals in fact, or de facto acting under color of law.

Then, the Government contends here that the because of the aiding and abetting statute regardless of the fact that the indictment did not refer to the aiding and abetting statute that the indictment on number 60 as against the private individual should've been allowed to stand.

We respectfully submit that the District Court was dealing simply with the interpretation of the indictment and not a construction of the statute in that regard and if the District Court was bidding with an interpretation of the indictment that on direct appeal, it is not been properly before the Court in case number 60, and that the Court should not take jurisdiction of the case in number 60.

In our minds, it's crystal clear that section 242 clearly reaches the Fourteenth Amendment guarantee having to do with action under color of law.

And that coupled with of 371 which makes the private individual vulnerable to the prosecution under general conspiracy to violate 242, and that without any overlapping, certainly, we feel that it was not the intention of the Congress that 241 and 242 deal with the exact same violation and that personally prosecuted twice for the exact same thing which is protected in regard to the Fifth Amendment.

But without overlapping, the officers can be prosecuted as the District Court held under 242 that the private individual should be prosecuted under general conspiracy of 371 which is -- in cases, is a felony.

In this case, it would not be because the object of 371 is 242, a misdemeanor, and therefore the charge against all of the defendants under 371 in this particular instance has to do with a felony -- oh excuse me, had to do with misdemeanor.

But it could, in other cases, have to do with the felony.

But without overlapping, we have 242 as to the action under color of law in regard to the officers, and 371 as to the individuals.

Now, if the indictment had been properly drawn and directed that they could be prosecuted, that private individuals under 242 also by the aiding and abetting statute, they can be prosecuted then on the substantive charge under 242 along with the officers, and all the officers and the private individuals prosecuted under 371 for general conspiracy.

Then if we do not restrict 241 to federal type rights, it's simply in effort to increase the punishment to go back and pickup 241, a felony charged to seek to prosecute them, all the defendants, for exactly what it had been covered in 242 and 371 and under the aiding and abetting statute under 242 also.

Justice Potter Stewart: Well I gather then Mr. Watkins, if you say this is not the construction of the statute, the construction of the indictment because the dismissal as to the private individuals turned on the omission of any expressed allegation under the aider or abettor statute?

Mr. H. C. Mike Watkins: Your Honor, Mr. Justice that is our contention.

And we understand it, if a decision of the District Court was based in part on the interpretation of the indictment that on direct appeal, there would be no jurisdiction in this Honorable Court.

That's our understanding.

But of course, we have already conceded the point that if a District Attorney had charged those individuals as we see it, was a violation of the aiding and abetting statute as such, that that indictment would have stood.

Justice Potter Stewart: The aiding and abetting statute isn't that -- doesn't set out a substantive offense, don't violate that statute?

Maybe, I don't (Voice Overlap) --

Mr. H. C. Mike Watkins: That is correct.

Justice Potter Stewart: But I suppose it could be this failure to mention that statute, it could be something -- it could be maybe somebody remedied by -- by a motion to make (Inaudible) or rather for a particular --

Mr. H. C. Mike Watkins: Mr. Justice Stewart that may be correct.

We feel like that the aiding and abetting statute Section 2, Title 18 of the United States Code has to do primarily with punishment, perhaps it does.

And though it was not specifically mentioned, it might have been the duty of the Court to have taken judicial notice of the existence of the aiding or abetting statute.

I'm trying to be completely as fair as I know how to be in answer to your question Mr. Justice.

I do not know the answer as to whether or not simply because the aiding and abetting statute was not specifically referred to in the indictment as to whether or not the Court should have taken judicial notice there.

However, we do feel that it certainly would be unfair to place the District Court in a position of being prosecutor, as well as judge in seeking out the statutes under which the main defendants could be prosecuted.

We respectfully submit in conclusion that the balance of power between the states and (Voice Overlap) --

Justice William J. Brennan: Mr. Watkins, may I just get this point clear.

May I just ask you this question?

I gather that even though you concede as to the private individual that this indictment had alleged the aiding and abetting statute, it would have been a good indictment against that.

Mr. H. C. Mike Watkins: If the facts also alleged, Your Honor, in the indictment to such an extent that it could have been legally determined by the District Court, that such acts constituted aiding and abetting, yes sir?

Justice William J. Brennan: Yes, under 242?

Mr. H. C. Mike Watkins: Under 242.

Justice William J. Brennan: Under 242.

Mr. H. C. Mike Watkins: Yes sir, I do.

Justice William J. Brennan: Well, I -- I gather you also say notwithstanding act from session.

There is no jurisdiction here to review because what the decision below turned on dismissing the individual or the private individual was the interpretation of the indictment as not embracing them because it did not make the allegation, is that it?

Mr. H. C. Mike Watkins: Mr. Justice Brennan, that is correct.

We contend that the decision of the Federal District Judge was based at least in part on the interpretation of the indictment and that the Government did not charge anything that he did, such as flashing the badge and --

Justice William J. Brennan: Yes, so that even if we were to disagree with you that it was necessary to have an expressed allegation, even if we were to say that we read the indict -- an expressed reference to the aiding and abetting statute was not required, it would still say I gather that we have no jurisdiction.

Mr. H. C. Mike Watkins: No sir.

Justice William J. Brennan: That that -- this determination that it wasn't necessary expressly to make the allegation has been made in the Court of Appeals and jurisdiction can't be made here.

Mr. H. C. Mike Watkins: That is our position Your Honor that since it may have been based in part on an interpretation of the indictment and our factual situation was before the District Court, that the matter of procedure would be not on direct appeal, that on direct appeal, the statute specifically authorizes review on certain cases, that is the construction of a statute or construction of the constitutional amendments or otherwise.

That is our position Your Honor.

We respectfully submit in conclusion that the balance of power between the states and the Federal Government is necessary to continue and give the proper meaning and purpose to our great system of Government, and here principally, as referred to in United States versus Williams, we are dealing also with that balance of power in regard to essentially local matters having to do here with solely natural rights between one citizen and another, that the Fourteenth Amendment guarantee does not add anything to the right of one citizen as against on another -- another citizen in regard to protection of a wrong committed by one citizen against another when that Fourteenth Amendment guarantees, as well as the Fifteenth, has to do with the provision against encroachment by the state or by the Federal Government in 15 in regard to these rights.

Thank you.

Chief Justice Earl Warren: Mr. Solicitor General?

Rebuttal of Thurgood Marshall

Mr. Thurgood Marshall: Mr. Chief Justice, may it please the Court.

Mr. Justice Stewart's question about Congress passing act that implies to murder, in 45 of the Government's brief in Appendix.

You will see Section 7, which did just that, and Congress later repealed it.

Section 7, and that was appealed later.

So I mean obviously, the Congress decided they didn't have power to do that.

The other question --

Justice Hugo L. Black: When was it repealed?

Mr. Thurgood Marshall: 1894.

Justice Potter Stewart: But it limits a little bit.

Mr. Thurgood Marshall: They tried --

Justice Potter Stewart: -- (Inaudible) in the -- in my hypothetical (Voice Overlap) --

Mr. Thurgood Marshall: Yes sir, yes sir.

But even that, it's (Voice Overlap) --

Justice Potter Stewart: (Inaudible)

Mr. Thurgood Marshall: The other question about the “aider and abettor” I think should point out that in 60, and each one of the substantive counts second, third and fourth, it is alleged that all 18, including the private individuals, “While acting under color of the laws of the State of Mississippi is alleged in each one of those counts.”

And the theory was obviously relied on the aider and abettor statute.

And --

Justice William J. Brennan: But what, Mr. Solicitor General, about Mr. Watkins' point that even if nothing more than this is required to invoke the aider and abettor statute, nevertheless as a matter of our jurisdiction, we can't say that.

An appeal should've been taken on the Court of Appeals for the Court of Appeals to say that.

Mr. Thurgood Marshall: Well (Voice Overlap) -- we have set out in footnotes on page 9 and 33 of the Government's brief cases I thought was perfectly clear that you didn't have to allege specifically under the aid and abettor statute.

Justice William J. Brennan: Yes, I know but I don't -- I don't think that's his argument.

I'm not suggesting -- I agree with --

Mr. Thurgood Marshall: Well, I --

Justice William J. Brennan: -- but his argument, as I understand Mr. Watkins, his argument is that whether or not the indictment was sufficient to embrace the aider and abettor statute, it's something we can't decide here because that's the question of interpretation of the indictment and therefore not an interpretation of construction of the statute.

There was -- there is no direct -- no jurisdiction on direct --

Mr. Thurgood Marshall: I --

Justice William J. Brennan: -- on appeal.

Mr. Thurgood Marshall: And I understand his argument to be that when the District Judge says that since you don't allege that one of the men flash the badge, then the factual basis is lacking.

What he really means is that unless you show that each defendant is a state officer, 242 doesn't apply.

That's not a factual determination, that's a legal determination.

Justice William J. Brennan: (Voice Overlap) -- statute

Mr. Thurgood Marshall: That's a legal determination of -- and the construction of the statute.

There is no fact in that at all.

And I say that the allegation that they acted under color of state, the law of the State of Mississippi which in each one of those three counts is enough.

The other point -- the only other point I'd like to mention is this constant argument that -- it of course applies -- 241 applies to the Fifteenth Amendment but they say it's because of Article 1.

But from all of the cases -- Guinn, Myers and Anderson, Mosley, and all of them, they talked about the Fifteenth Amendment.

That didn't talk about Article 1.

Classic does, but Classic then goes ahead and talks about Fourteenth and Fifteenth Amendment rights just like everybody understands them.

I don't believe it can be limited to that and we would urge that the Court reverse.

If there is any question about technicalities on the indictment, that can be worked out on the District Court level.

Justice Tom C. Clark: What effect does Cruikshank you have on this case?

Mr. Thurgood Marshall: I take position Mr. Justice Clark that Cruikshank went off on that one little point as I remember -- I mean, so far as I'm concerned, on the question about the race not being involved and that is always (Inaudible).

But I did not rely on one way or another in our brief because starting with the Screws and Williams, I take the position that all of those cases now stand in a different category because they were all reviewed so thoroughly and why do we have to go back again to it.

Justice Tom C. Clark: We wouldn't have to overrule the Cruikshank?

Mr. Thurgood Marshall: No sir.

I think you could find that -- we've got it in our brief.

It would be -- it can -- I don't think -- as long as we have Screws and Williams, I don't think we have any problem of overruling any case.

Justice Tom C. Clark: The written opinion in Williams, in the court opinion.

Mr. Thurgood Marshall: It was a four to four.

Justice Tom C. Clark: You mean --

Mr. Thurgood Marshall: For intensive purposes.

Justice Tom C. Clark: You mean Justice Douglas' opinion.

Mr. Thurgood Marshall: Justice Douglas' opinion.

I think that the possibility is that the --

Justice Tom C. Clark: What all you do is you linked Screws and Justice Douglas' opinion in Williams together?

Mr. Thurgood Marshall: Yes sir.

Justice Tom C. Clark: In your position?

Mr. Thurgood Marshall: Yes sir.

I put the two of them together and then I take that you don't have to go any further than that.

Justice Potter Stewart: But you have to put the two together.

They can't stand on Screws alone, can they?

Mr. Thurgood Marshall: I think we have to put the two together.

I do say that in the Screws which will come up considerably in the next case, I think that the whole purpose in Screws was to not be forced to throw the Section completely out, and to find a way that would make it constitutional.

And indeed, when you read Mr. Justice's opinion on Williams, he uses that for that purpose and we intend to use it in defense.

Justice Tom C. Clark: Now Screws -- I mean, in Screws, was it under 242?

Mr. Thurgood Marshall: The Screws was on 241-- or 242.

242.

It's 242, because with the sheriff and an assistant.

Justice Tom C. Clark: Do you see any difference -- did you file that same reason in 241?

Mr. Thurgood Marshall: Well, I think that when you take the two together, the reasoning that oppose 242 which was that you have to put some limitation on this in order for it to be constitutional, the limitation is that you must allege intent to deprive the victim of his rights guaranteed.

Justice Tom C. Clark: Specifically?

Mr. Thurgood Marshall: Specifically, specifically.

Now in Williams, it was made quite clear that under the conspiracy statute, you get the same kind of intent, you don't -- you don't conspire to do good.

Justice Tom C. Clark: Now of course, you'd have to have a majority opinion in Williams.

In other words, you see it's only two of us left.

Mr. Thurgood Marshall: Yes sir, yes sir.

Well, I think that's good enough for us.

Thank you sir.