Only eleven years after Secretary Seward had certified that the fourteenth amendment had become a part of the Constitution, Mr. Justice Strong speaking for the United States Supreme Court in Ex parte Virginia and speaking of the due process and equal protection clauses and of the thirteenth amendment said, One great purpose of these amendments 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 were intended to take away all possibility of oppression by law because of race or color. 100 U.S. at 344-45. Mr. Justice Strong mentions only the civil rights of the colored race. The fourteenth amendment is not limited to the proscription of racial discrimination. The Justice was speaking only in the context of the case then before the Court, a case wherein a state court judge excluded Negroes from jury service. Ex parte Virginia is discussed more fully infra p. 204. The due process and equal protection clauses, quoted at the outset, make no mention -of the colored race or racial discrimination. “Persons” are protected. The dauses protect all persons of any class or race, whether they be Arab, Japanese, or Chinese, Jews, Christians or atheists, aliens or citizens, residents or nonresidents, men or women, individuals or corporations. See, e.g., Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77 (1938); Yick Wo v. Hopkins, 118 U.S. 356 (1885); County of Santa Clara v. Southern Pac. R.R., 18 Fed. 385 (C.C. D. Cal. 1883)
THE LANDMARK DECISIONS OF THE SUPREME COURT
Ex parte Virginia Section five of the fourteenth amendment gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Pursuant thereto Congress adopted legislation which made unlawful the disqualification, on account of race, color or previous condition of servitude, of any person from grand or petit jury service. It provided that “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. . . .,” J. D. Coles, a county court judge of Virginia, was indicted in the federal court of that state charged with violating the federal statute. The state statute which authorized Judge Coles to select jurors made no discrimination against members of the colored race. It simply required him to prepare a jury list of inhabitants of the county who were “well qualified to serve as jurors.” He, joined by the State of Virginia, sought release from fedeial custody by habeas’corpu ; challenging the constitutionality of the federal statute as applied to state judicial officers.’ 6 The question thus raised was whether Judge Coles’ discrimination was chargeable to the State of Virginia. Was his discrimination a denial by the state of equal protection of the laws? It is to be particularly noted that the state statute under which Judge Coles acted was-not discriminatory. Had there been discriminatory legislation pursuant to which Judge Coles acted the case against him would not have been notable for, at the same term the Court had already announced Strauder v. West Virginia,”t holding, what was fairly obvious, that a state statute which required the exclusion of colored persons from jury service was per se unconstitutional, and that judicial enforcement of the’state law violated the equal protection clause. To this the Court, in refusing Judge Coles’ application, added, A State acts by its legislative,, its executive, or its judicial authorities. It can act in no other way. The constitutional pxovision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protec- tion of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.’8 The dissenting opinion’9 of Mr. Justice Field argued that the federal government was constitutionally incapable of interfering with state judicial officers. To this argument the majority gave a most significant reply. It said in effect that it was not the character of the actor but the character of the act which determined the classification or the’ nature of Judge Coles’ conduct. Its language has a modern appeal. It is pregnant with the “new meanings” which Professor Morse has found in Plummer v. Casey,20 Pennsylvania v. Board of Directors2′ and Brewer v. Hoxie School District No. 46.22 It is a warning to those southern states which, to avoid the effect of Brown v. Board of Educ. would surrender
the operation of public schools to private institutions and private agencies. Mr. Justice Strong wrote, It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Coles, selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. It often is given to county commissioners or supervisors, or assessors.
In former times, the selection was made by the sheriff. In such cases, it surely is not a judicial act, in any such sense as is contended for here. It is merely a ministerial act, as much so as the act of a sheriff holding an execution, in determining upon what piece of property he will make a levy, or the act of a roadmaster in selecting laborers to work upon the roads. That the jurors are selected for a court makes no difference. So are court-criers, tipstaves, sheriffs, etc. Is their election or their appointment a judicial act? 23 The court’s fear of finding federal interference with judicial acts is hard to understand. The state itself is not immune from the United States Constitution. Neither are its legislative nor its executive officers. There is no reason why an aura of immunity should envelop its judicial officers even in the performance of judicial functions. Be that as it may, the words of the Court in 1879 suggest some “liberal” answers to some modern problems and foreshadow the shape of things to come. If our criterion for judicial action is the character of the act and not the character of the actor, might the same not be said of state action? And if the act would be offensive even if “the duty of selecting jurors might have been entrusted to private persons” can the state escape the strictures of the fourteenth amendment by its abdication of customary state functions?
Can it immunize itself from the fifteenth amendment24 by giving control of its primary elections to private organizations?2 ” Can it deed the ownership of its statehouse or its court houses to private parties and disclaim responsibility for the discrimination found therein? Can it avoid due process and equal protection by surrendering the operation of its parks and beaches and transportation facilities? Can it discharge its duty to integrate public schools by removing itself from the field of education? There are certain functions customarily performed by a state or a county or a municipality and when these functions are sur-rendered to private agencies the very surrender itself must be state action, and the state must continue to bear responsibility for the execution of those functions. Can we not draw such a conclusion from Mr. Justice Strong’s dictum in Ex parte Virginia? There are also certain functions which the states have undertaken to perform. Perhaps they are not what we once called “governmental” functions, but they have been performed by the state. They have become impressed with the indelible mark of their state origin, and the state cannot abdicate these functions without assuming responsibility for any subsequent “private” discrimination in the discharge thereof.
I am aware, to be sure, that the Supreme Court has lampooned the distinctions drawn between governmental and proprietary functions. I recall what Mr. Justice Frankfurter, with respect to another article of the Constitution, wrote in concluding the Court’s opinion in New York v. United States:26 So we decide enough when we reject limitations upon the taxing power of Congress derived from such untenable criteria as ‘proprietary’ against ‘governmental’ activities of the States, or historically sanctioned activities of government, or activities conducted merely for profit, and find no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter. I would not revive those nagging niceties by which courts were accustomed to distinguish governmental and proprietary functions. What is suggested is that for the purpose of due process and equal protection all distinctions be discarded. There is a logical consistency between Mr. Justice Frankfurter’s reasoning in New York v. United States and the Court’s refusal in Ex parte Virginia to garb Judge Coles in a robe of judicial immunity.
For is it not obvious that a state can act only through its agents, its executive, its legislature, its courts, its administrative tribunals, and whether the act be called sovereign or proprietary, public or personal, whether it be general or private legislation, whether it be the operation of bus lines, or parks or schools or restaurant facilities, whether in so acting the state competes with private enterprises, it is nonetheless state action? And if it is the kind of act customarily done by a state, or an enterprise which the state has originated or once administered, the state cannot shirk responsibility by deeding or leasing the functions to private concessionaires. I would submit that this does no more to state action than the Court’s dictum in Ex parte Virginia does to judicial action. Might we not suggest, therefore, that the search is not for state action, at least not as the word is defined by Mr. Webster, but rather for state participation, state responsibility, state favor, state origin, state preference. It does not follow that we must conclude, as one author suggests,27 that private activities of private origin might grow so immense as to assume public (and, therefore, I suppose, state) proportions or become so affected with a public interest as to impose responsibility upon the state for its operation even without state intervention. Professor Horowitz suggests, for example, that if the Ford Foundation were to pursue a policy of racial discrimination it would be a denial of equal protection.” There is a semblance of support for this reasoning in Marsh v. Alabama,29 but there is a danger too. Pushed to its “dryly logical extreme” this reasoning would require overruling the Civil Rights Cases.30 Every trust, every foundation is touched with a public interest. Need we be reminded of Mr. Justice Robert’s warning in Nebbia v. New York” that there is no closed category of businesses affected with a public interest?
The Civil Rights Cases
What has been said thus far presupposes the distinction drawn, four years after Ex parte Virginia, between state action and private action. It is on the pivot of the Civil Rights Cases that Professor Morse’s article turns. The Civil Rights Cases2 held unconstitutional a federal statute which prescribed criminal sanctions for refusing hotel accommodations for reasons of race or color. State law, in these cases, was silent on the subject. In holding that the fourteenth amendment is not concerned with private invasions of private rights, the Court speaking through Mr. Justice Bradley, said, The first section of the Fourteenth Amendment . . . is prohibitory in its character, and prohibitory upon the States….
It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws..
The Justice added that private invasion of private rights is not unconstitutional unless the wrongdoer is “protected in these wrongful acts by some shield of State law or State authority, ’34 and that the “abrogation and denial of rights … for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied