The Constitution of the United States of America: Analysis and Interpretation Part 188

Reduction of State's Representation

"Questions relating to the apportionment of representatives among the several States are political in their nature and reside exclusively within the determination of Congress * * *" Consequently, a United States District Court was obliged to dismiss an action for damages against the Virginia Secretary of State for the latter's refusal to certify the plaintiff as candidate for the office of Congressman at large, inasmuch as the plaintiff's case rested on the theory that the apportionment act of Congress and the Redistricting Act of Virginia, by failing to take into account the disenfranchis.e.m.e.nt of 60% of the voters occasioned by the poll tax, were both invalid, and that Virginia accordingly was ent.i.tled to only four instead of nine Congressmen, which four were to be elected at large.[1223] "It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress."[1224]

DISQUALIFICATION OF OFFICERS

Section 3. No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Const.i.tution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In General

The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals--notably by act of December 14, 1869 (16 Stat. 607). In 1872, the disabilities were removed, by a blanket act, from all persons "except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial military, and naval service of the United States, heads of departments, and foreign ministers of the United States" (17 Stat. 142). Twenty-six years later, on June 6, 1898 (30 Stat. 432), Congress enacted briefly that "the disability imposed by section 3 * * * incurred heretofore [prior to June 6, 1898], is hereby removed."[1225]

PUBLIC DEBT, ETC.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall a.s.sume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emanc.i.p.ation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Although section four "was undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation. * * * 'the validity of the public debt' * * * [embraces] whatever concerns the integrity of the public obligations," and applies to government bonds issued after as well as before adoption of the Amendment.[1226]

ENFORCEMENT

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Scope of the Provision

"* * * until some State law has been pa.s.sed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity: * * *

The legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking."[1227]

Conversely, Congress may enforce the provisions of the amendment whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of the enforcement is left to its discretion. It may secure the right, that is, enforce its recognition, by removing the case from a State court, in which it is denied, into a federal court where it will be acknowledged.[1228]

Similarly, Congress may provide that "no citizen, possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or pet.i.t juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, * * *"[1229] However, the Supreme Court declined to sustain Congress when, under the guise of enforcing the Fourteenth Amendment by appropriate legislation, it enacted a statute which was not limited to take effect only in case a State should abridge the privileges of United States citizens, but applied no matter how well the State might have performed its duty, and would subject to punishment private individuals who conspired to deprive anyone of the equal protection of the laws.[1230]

Whether its powers of enforcement enable Congress const.i.tutionally to punish State officers who abuse their authority and act in violation of their State's laws is a question on which the Justices only recently have divided. Five Justices ruled in Screws _v._ United States[1231]

that section 20 of the Criminal Code[1232] which provides "whoever, under the color of any law, statute, ordinance, * * *, willfully subjects, * * *, any inhabitant of any State, * * * to the deprivation of any rights, * * * protected by the Const.i.tution and laws of the United States, * * *" could be the basis of a prosecution of Screws, a Georgia sheriff, and others, on charges of having, in the course of arresting a Negro, brutally beaten him to death and deprive him of "the right not to be deprived of life without due process of law."[1233]

Holding that, "abuse of State power" does not create "immunity to federal power" these five Justices concluded that Ex parte Virginia[1234] and United States _v._ Cla.s.sic[1235] had rejected for all time the defense that action by state officers in excess of their powers did not const.i.tute state action "under color of law" and therefore was punishable, if at all, only as a crime against the State.[1236] The conviction of Screws was, however, reversed on the ground that the jury should have been instructed to say whether the accused had had the "specific intent" to deprive their victim of his const.i.tutional rights, since in the absence of such a finding -- 20 failed for indefiniteness.[1237] But this construction of the word "willfully"

appears subsequently to have been abandoned, or at least considerably watered down. In Williams _v._ United States,[1238] decided in April 1951, the Court ruled, by a bare majority, that a conviction under -- 20 was not subject to objection on the ground of the vagueness of the statute where the indictment made it clear that the const.i.tutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[1239] To the same effect is the later case of Koehler _v._ United States[1240] in which the Court denied certiorari in a case closely resembling that of Screws, although the trial judge, while charging the jury that it must find specific intent, nevertheless went on to say:"'The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. It is a well settled rule, which the law applies to both criminal and civil cases, that the intent is presumed and inferred from the result of the action.'"[1241]

Notes

[1] As to the other categories, see Art. I, -- 8, cl. 4, Naturalization (_see_ pp. 254-256).

[2] Scott _v._ Sandford, 19 How. 393 (1897).

[3] Ibid. 404-406, 417-418, 419-420.

[4] By the Civil Rights Act of April 9, 1866 (14 Stat. 27), enacted two years prior to the Fourteenth Amendment, "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; * * *"

[5] 169 U.S. 649 (1898).--Thus, a person who was born in the United States of Swedish parents then naturalized here did not lose her citizenship and was therefore not subject to deportation because of her removal to Sweden during her minority, it appearing that her parents resumed their citizenship in that country, but that she returned here on attaining majority with intention to retain and maintain her citizenship.--Perkins _v._ Elg, 307 U.S. 325 (1939).

[6] 169 U.S. 682.

[7] In re Look Tin Sing, 21 F. 905 (1884).

[8] Lam Mow _v._ Nagle, 24 F. (2d) 316 (1928).

[9] United States _v._ Gordon, Fed. Cas. No. 15,231 (1861). The term, United States, is defined in the recently enacted Immigration and Nationality Act as follows: "The term, 'United States', except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States." 66 Stat. 165, -- 101 (38). Whether the expression is used in the same sense in Amendment XIV may be questionable.

[10] Slaughter-House Cases, 16 Wall. 36, 74 (1873).

[11] Arver _v._ United States (Selective Draft Law Cases), 245 U.S. 366, 377, 388-389 (1918).

[12] Insurance Co. _v._ New Orleans, Fed. Cas. No. 7,052 (1870).--Not being citizens of the United States, corporations accordingly have been declared unable "to claim the protection of that clause of the Fourteenth Amendment which secures the privileges and immunities of citizens of the United States against abridgment or impairment by the law of a State."--Orient Ins. Co. _v._ Daggs, 172 U.S. 557, 561 (1899).

This conclusion was in harmony with the earlier holding in Paul _v._ Virginia, 8 Wall. 168 (1869) to the effect that corporations were not within the scope of the privileges and immunities clause of state citizenship set out in article 4, section 2. _See also_ Selover, Bates & Co. _v._ Walsh, 226 U.S. 112, 126 (1912); Berea College _v._ Kentucky, 211 U.S. 45 (1908); Liberty Warehouse Co. _v._ Burley Tobacco Growers'

Co-op. Marketing a.s.so., 276 U.S. 71, 89 (1928); Grosjean _v._ American Press Co., 297 U.S. 233, 244 (1936).

[13] 16 Wall. 36, 71, 77-79 (1873).

[14] Ibid. 78-79.

[15] Ibid. 79, citing Crandall _v._ Nevada, 6 Wall. 35 (1868). Decided before ratification of the Fourteenth Amendment.

[16] 211 U.S. 78, 97.

[17] Crandall _v._ Nevada, 6 Wall. 35 (1868). This case has been cited as supporting the claim that "the right to pa.s.s freely from State to State" is "among the rights and privileges of National citizenship"

(Twining _v._ New Jersey, 211 U.S. 78, 97 (1908)); but it was pointed out in United States _v._ Wheeler, 254 U.S. 281, 299 (1920), that the statute involved in the Crandall Case was held to burden directly the performance by the United States of its governmental functions. In Williams _v._ Fears, 179 U.S. 270, 274 (1900), a law taxing the business of hiring persons to labor outside the State was upheld on the ground that it affected freedom of egress from the State "only incidentally and remotely."

[18] United States _v._ Cruikshank, 92 U.S. 542 (1876).

[19] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley _v._ Sinkler, 179 U.S. 58 (1900).

[20] United States _v._ Waddell, 112 U.S. 76 (1884).

[21] Logan _v._ United States, 144 U.S. 263 (1892).

[22] Re Quarles, 158 U.S. 532 (1895).

[23] Crutcher _v._ Kentucky, 141 U.S. 47, 57 (1891).

[24] 307 U.S. 496.

[25] Concurring in the result, Justice Stone contended that the case should have been disposed of by reliance upon the due process, rather than the privileges and immunities, clause, inasmuch as the record disclosed that the complainants had not invoked the latter clause and the evidence failed to indicate that any of the complainants were in fact citizens or that any relation between citizens and the Federal Government was involved.--Ibid. 525-527.