limited, the impact is directly upon immediate and intense conflicts over the proper roles of the State and Federal Governments. Here, presumably, if anywhere, the adoption of the Covenant would have a revolutionary effect. It is necessary, therefore, to examine the extent to which the Federal Government now has power to protect civil rights and then to consider how far that power would be broadened by the adoption of the Covenant.

It is schoolboy learning that when our Constitution was ordained, the Founding Fathers, although reasonably satisfied with the power structure in their state governments, were concerned over the possibility of tyrannical use of the new sovereign power they were creating. In response to widespread demand, a group of amendments was adopted, hard on the heels of the Constitution itself, enumerating specific limitations on the powers of the Federal Government. Barron v. Baltimore85 shocked no expectations in holding that the Bill of Rights did not operate as a limitation on the States. The lines were clear: the power of the Federal Government was duly shackled by the Federal Constitution; except for a few items designed for the protection of creditors, the Constitution left to the citizens through the ballot and the state constitutions the problem of protecting their liberties from state and local invasion.86

So things remained until the nation undertook to secure the fruits of a long, bitter, and costly civil war. The Thirteenth Amendment put federal power behind rights other than those of creditors. The institutions of slavery and involuntary servitude were no longer to "exist within the United States" and Congress was authorized "to enforce this article by appropriate legislation." Whatever the defects of their program and however mixed their motives may have been, those who formulated a program of reconstruction were wise enough to know that man is not free merely because he is relieved of physically coerced bondage to another. They accordingly enacted a series of laws, the Civil Rights Acts, designed to interpose a federal barrier against measures which had been taken in some states to deny full equality to the freedmen.87 Doubts were voiced that the Thirteenth Amendment furnished adequate authority for some of these laws. To remove the doubts, the Fourteenth and then the Fifteenth Amendments were enacted.88 Drafted in the face of hostile state legislation, they not too surprisingly departed somewhat from the form of the Thirteenth Amendment: where the latter had proscribed the fact of involuntary servitude, the former enjoin that "No State" should "make or enforce any law which 85 7 Pet. 243 (U. S. 1833).

80 Familiarity has blunted awareness of the magnitude of the invasion of state freedom by the obligation of contract clause (U. S. CONST. Art. I, §10, par. 1) and the bankruptcy clause (id. Art. I, §8, par. 4).

87 The Civil Rights Acts are summarized in BIDDLE, CIVIL RIGHTS AND THE FEDERAL LAW, IN SAFEGUARDING CIVIL LIBERTY TODAY 120 (1945); ROBERT K. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS 35-55 (1947).

88 The authoritative history is HORACE E. FLACK, THE ADOPTION OF THE FOURTEENTH AMENDMENT (1908). A brief summary may be found in the dissenting opinion of Justice Black in Adamson v. California, 332 U. S. 46, 68-123 (1947).

shall abridge the privileges and immunities of citizens of the United States"; nor shall "any State deprive any person of life, liberty, or property, without due process of law"; and the right to vote shall not be denied or abridged "by any State" on account of race, color, or previous servitude. Both amendments, like the Thirteenth, authorized Congress to enact appropriate legislation for enforcement. Here, seemingly, was a revolution in federal-state relations. Apparently the power of the Federal Government was being invoked to protect the whole range of civil rights, to assure freedom in fact.

But constitutions mean what the courts say, and the Supreme Court most emphatically said that these amendments did not cause a revolution. In the Slaughter House Cases, the Court reduced the privileges and immunities clause to a tautology90 by excluding from its scope any rights which might be said to belong to free men generally: these, said the Court, were privileges and immunities of state citizenship, not of national citizenship, and therefore not protected by the Amendment. This and other decisions were seemingly effective in suppressing the revolution.9 91 The result has been simply and accurately put by a commentator who heartily approved:

The primary purpose of the adoption of the Fourteenth Amendment was to elevate the negro to a place of equality with the white people and to assure his newly given rights. In its attempts to carry out this ideal, Congress was effectually restrained by the Supreme Court. 92

Although the Court in accomplishing this feat purported to rely on the intentions that produced the Amendments,93 there is a later judicial admission that those intentions were perhaps not entirely respected. In 1908, in Twining v. New Jersey,94 Justice Moody said that the Slaughter House Cases "undoubtedly gave much less effect to the Fourteenth Amendment than some of the public men active in framing it intended, and disappointed many others."

Apparently stifled at the outset, the revolutionary force began to move in a new direction. In the last part of the nineteenth and the early part of the twentieth century there were increasing appeals by business interests to the due process clause of the Fourteenth Amendment for protection against troublesome state regulations.95 The Court heeded the appeals. Federal power was increasingly invoked to protect citizens against the actions of their own states. But when the waters began to rise, they could not be confined to the channel of business interests; inevitably they flowed 89 16 Wall. 36 (U. S. 1873).

90 EDWARD S. CORWIN, THE CONSTITUTION AND WHAT IT MEANS TODAY 187 (9th ed. 1947).

1 The story is well told in Watt and Orlikoff, The Coming Vindication of Mr. Justice Harlan, 44 ILL. L. REV. 13 (1949).

** CHARLES W. COLLINS, THE FOURTEENTH AMENDMENT AND THE STATES 161 (1912), quoted in Watt and Orlikoff, supra note 91, at 19.

03 16 Wall. 36, 67-68 (U. S. 1873).

94 211 U. S. 78, 96 (1908).

95 See BENJAMIN R. TWISS, LAWYERS AND THE CONSTITUTIONS: HOW LAISSEZ FAIRE CAME TO THE SUPREME COURT (1942).

into the area of civil rights.96 Since 1926 the due process clause of the Fourteenth Amendment has been rapidly expanded to protect civil rights against attacks not launched by the Federal Government. Freedom of the press, speech, religion, assembly, the right to a fair trial by an impartial tribunal, the assistance of counsel if necessary for a fair trial, the right not to be convicted on the basis of coerced testimony or of testimony known by the prosecution to be perjured97—with the recognition that the due process clause includes these rights and freedoms, the arm of the Federal Government reaches far into the relations between States and their citizens.

But that is not the end of the story. An effective limit appeared to exist, for a time, in the fact that the prohibitions of the Fourteenth and Fifteenth Amendments ran only against action by the States-the Amendments did not guarantee the rights in a general way. At one time there was a tendency to hold that "state action” included only state laws or those acts of state officials which had been authorized by state laws.98 More recently state action has been found whenever an official of the state, acting in an official capacity, deprives a person of a constitutionally protected right, although the act constituting the deprivation be done without the sanction, or in violation, of state law.99

The latest cases have departed farther from the original, formalistic conception of the kind of state action prohibited by the Fourteenth and Fifteenth Amendments. Most striking has been the series of election cases. Smith v. Allwright100 overruled Grovey v. Townsend101 to hold that where the primary elections were regulated by statutes of Texas, the exclusion of negroes from membership in the Democratic Party not by statute, but merely by action of the party's own state convention, amounted to state action denying the right to vote on account of race, contrary to the Fifteenth Amendment. South Carolina's response was to repeal all provisions in her Constitution and statutes relating to primaries. The operation of the primaries was taken over by the Democratic Party. Taking cognizance of the decisive role of the primaries and of the fact that the general elections as managed by the State rested upon the functioning of the primaries, the District Court in South Carolina held the exclusion of negroes from the primary to be forbidden state action. The Supreme Court declined to review the affirmance of this decision by the Court of Appeals.102

* "The water had been rising for a hundred and thirty odd years, until in 1925 it lapped quietly over the sill." CHARLES P. CURTIS, JR., LIONS UNDER THE THRONE 267 (1947).

97 Grosjean v. American Press Co., 297 U. S. 233 (1936); Thomas v. Collins, 323 U. S. 516 (1945); West Virginia v. Barnette, 319 U. S. 624 (1943); De Jonge v. Oregon, 299 U. S. 353 (1937); Moore v. Dempsey, 261 U. S. 86 (1923); Powell v. Alabama, 287 U. S. 45 (1932); Haley v. Ohio, 332 U. S. 596 (1948); Mooney v. Holohan, 294 U. S. 103 (1935).

98

Barney v. City of New York, 193 U. S. 430 (1904).

" Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278 (1913); Screws v. United States, 325 U. S. 91 (1945).

100 321 U. S. 649 (1944).

101

102

294 U. S. 699 (1935).

Elmore v. Rice, 72 F. Supp. 516 (E.D.S.C.), aff'd, 165 F. 2d 387 (C.C.A. 4th 1947), cert. denied, 333 U. S. 875 (1948), Note, 96 U. of Pa. L. REV. 402 (1948), 48 COL. L. REV. 1241 (1948).

It is against the background of this development, all too summarily sketched here, that the current foci of dispute must be examined. They are to be found in the civil rights legislation which has been requested by the President in the last few sessions of Congress: federal protection against lynching; a federal prohibition on discrimination in employment; and federal banning of the poll tax. The various bills proposed to reduce lynchings include three features: federal prosecution of state officials whose connivance or negligence makes them possible; the assessment of penalties against the communities through the default or connivance of which they occur; and federal prosecution of private citizens who participate in the lynchings.103 The present concept of state action under the Fourteenth Amendment would seem to assure the validity of the first two types of action against lynching.' 104 Even isolated instances of culpable inaction by the state or local officials would seem to fall within the concept. Similar situations are regarded in international law as providing a basis for a claim against the state.105 But in any event, a systematic pattern of state inaction, just as surely as a statute excepting from the penal code's definition of murder the killing of negroes charged with crime, would unquestionably justify the invocation of federal protective legislation. The only doubtful question is whether federal statutes could constitutionally be invoked against the actual perpetrators of the lynching. The relation to the election cases is more than tenuous. If our courts deemed it expedient to look squarely and hard at the social role played by lynchings in maintaining an inferior status for the negroes, they could see that the lynch mob, in an area in which violence or the threats of it are systematically condoned, is in fact performing a state function.

This last step may be farther than the courts would be willing to go now. If so, perhaps this is one point at which adherence to the Covenant would authorize the passage of federal legislation which would not otherwise be valid. The creation of the power does not, of course, make its exercise inevitable. Federal sanction for non-official lynchers might not be an indispensable step toward the fulfillment of a treaty obligation to protect individuals against improper deprivation of life. Reasonable sanctions to compel state enforcement of existing laws might well be regarded as sufficient. But here, probably, is some expansion of federal power.

The second major issue is the prohibition of discrimination in employment. A basis for comprehensive federal legislation against such discrimination has been thought by the President's Committee on Civil Rights to lie in the cumulative economic effects of suppressing minority groups." 106 Perhaps this chain of economic consequences is too attenuated to support federal action.107 There can be little doubt,

103

A typical bill is analyzed in Comment, 47 MICH. L. REV. 369 (1949).

104 See Note, 57 YALE L. J. 855 (1948); Comment, 47 MICH. L. REV. 369 (1949).

105 2 HYDE, op. cit. supra, note 63, §§289, 290. See also In Re Yamashita, 327 U. S. 1, 16 (1946). 106 TO SECURE THESE RIGHTS, REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, 141-146, 167 (1947).

107 There is some doubt as to how attenuated an economic effect on interstate commerce may be before the Court will hold it inadequate to support federal legislation. With Justice Cardozo's opinion

108

however, that as a practical matter a prohibition against the shipment in interstate commerce of goods produced in an establishment in which discriminatory employment practices are applied would effectively settle this problem. And there can be as little doubt that such a measure would be held constitutional. Indeed, violently as the proposal has been fought, opponents seldom raise the constitutional issue." It may be that the federal power to effectuate national policy by the use of an embargo on interstate shipments is less sweeping than suggested by Justice Holmes in his famous dissent in the first Child Labor Case,109 despite the recognition given that dissent in the opinion of the Court in United States v. Darby.110 But if the embargo power is limited by the necessity for some relationship between the commerce banned and the evil aimed at, the relationship appears to be present where discriminatory employment practices are the target.111 As to this issue, therefore, the ratification of the Covenant would not appear to affect materially the question of federal power.

The third issue now in controversy concerns the poll tax. Since the Covenant as now proposed does not include the right to universal participation in free elections, this issue will probably not be affected in the near future. But even if such a right would later be included, in form similar to Article 21 of the Declaration, no substantial enlargement of federal legislative power would follow. The consensus is that there is already adequate basis for eliminating the poll tax in federal elections.1 As a practical matter, that would probably eliminate the issue as far as local elections were concerned.

112

One important phase of civil rights has not yet been referred to: the right of access, without discrimination, to places of public accommodation. In the Civil

in Schechter v. United States, 295 U. S. 495, 551, 554 (1935), compare Wickard v. Filburn, 317 U. S. III (1942) and Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219 (1948). See also United States v. Sullivan, 332 U. S. 689 (1948), Note, 43 ILL. L. Rev. 389 (1948).

108

(1945).

Hunt, The Proposed Fair Employment Practices Act, Facts and Fallacies, 32 Va. L. Rev. 1, 3-4

109 Hammer v. Dagenhart, 247 U. S. 251, 277 (1918).

110 312 U. S. 100 (1941).

111

...

Cf. Powell, The Child Labor Law, the Tenth Amendment, and the Commerce Clause, 3 So. L. Q. 175 (1918), 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 314, 335 (1938): "No one can quarrel with the Supreme Court for insisting that there must be a limit to the conditions which Congress may attach to prohibitions of interstate transportation. So Congress could not prescribe that a man should not ship goods across state lines in case he violated his marriage vows. There would be no nexus between the infidelity and the transportation. But there is a nexus between making goods and shipping them. Evil in the making grows by the transportation it feeds on. Transportation increases child labor. It aids in an evil which is a menace to the attainment of national objects. Congress cannot obliterate the evil. But it should be allowed to lessen it by denying it aid from the enjoyment of the highways under national control. If ever it should go further and seek to apply its commerce power to evils in no way dependent upon the commerce subject to its control, then the Supreme Court may with wisdom declare that it has failed to make a legitimate connection between its prohibition of transportation and the circumstances in which the prohibition is conditioned." But see Green, Some Heretical Remarks on the Federal Power Over Commerce, 31 MINN. L. Rev. 121 (1947); Collins, Constitutional Aspects of the Truman Program, 44 ILL. L. Rev. 1 (1949).

112 The arguments and authorities are considered in Kallenbach, Constitutional Aspects of Federal Anti-Poll Tax Legislation, 45 MICH. L. REV. 717 (1947); Christensen, The Constitutionality of National Anti-Poll Tax Bills, 33 MINN. L. Rev. 217 (1949). But see Morse, Unconstitutionality of the Proposed Federal Abolition of the Poll Tax, 52 DICK. L. Rev. 163 (1948).