The Supreme Court found that Congress had originally intended for the statute to reach the actions of private citizens, 3 and that Congress had the authority to reach such activity under the thirteenth amendment and the constitutionally protected right to travel.4 In so holding, however, the Court offered no indication of how future claims arising under the statute would be adjudicated in fact situations unlike the unique one encountered in Griffin v. Breckenridge.5 Since the Supreme Court has not chosen to hear a section 1985(3) case since Griffin, it has been up to the lower federal courts to fashion answers to the many significant questions concerning the operation of the statute left unanswered by the Court. Some of these unanswered questions go to the heart of the statute, for example: Who can conspire in a civil conspiracy?6 What is the requisite intent for a section 1985(3) action?7 Does Congress have the power under section 1985(3) to reach private conspiracies unlike the racially motivated one encountered in Griffin v. Breckenridge?”
This Note will examine how the federal courts have answered the questions left unresolved by the Supreme Court in Griffin, with particular emphasis being given to the three prominent questions mentioned above. It is hoped that by examining the boundaries of the statute, as demarcated by the holdings of the federal courts, an effective statement can be made concerning the potential reach of 42 U.S.C. § 1985(3). To achieve its purpose, this Note must begin with an examination of section 1985(3) as originally enacted 9 and the subsequent interpretations of it and its companion provisions by the Supreme Court of the post Reconstruction era.
As further background, two earlier Warren Court decisions’0 must be touched upon, and a thorough exploration made of the holding of Griffin v. Breckenridge. Then, in order to analyze the adjudication of section 1985(3) in the federal courts since Griffin, the statute will be broken down into the four elements of its cause of action (as set out by the Court in Griffin) and each will be discussed individually. To provide a focus for that discussion, as well as some practical application for this Note, the examination of these elements will be conducted from the standpoint of a sex discrimination claimant attempting to utilize section 1985(3).”
THE CIVIL RIGHTS ACTS AND THE STRICT CONSTRUCRIONIST COURT
42 U.S.C. § 1985(3) has its roots in the Ku Klux Klan Act of 1871.12 That Act was the culmination of two earlier attempts by Congress to enact workable civil rights legislation after the Civil War.’ 3 The 1871 Act was largely the response of an empassioned Republican Congress to the incalculable violence 14 practiced by the Ku Klux Klan during the post-war period;’ 5 and is generally regarded as the lineal ancestor of most civil rights legislation in force today.’ See Monroe v. Pape, 365 U.S. 167, 174 (1961); Cressman, The Unhappy History of Civil Rights Legiskltion, 50 MICH. L. REV. 1323, 1334 (1952) for confirmation of the effect the Klan’s violence had upon the intentions of Congress. 16 Section 2 of the Ku Klux Klan Act was the forerunner of both 42 U.S.C. § 1985(3) (1970) and 18 U.S.C. § 241 (1970).
Act of April 20, 1871, ch. 22, § 2, 17 Stat. 13-14 provided in pertinent part: That if two or more persons . . . conspire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws . . . . and every person so offending shall be deemed guilty of a high crime, and, upon conviction thereof . . . shall be punished by a fine not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, as the court may determine, for a period of not less than six months nor more than six years, as the court may determine, of by both such fine and imprisonment as the court shall determine. And if any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy …. In 1875, when Congress compiled the Revised Statutes, the criminal and civil remedies set out in Section 2 were separately codified. The criminal conspiracy provision found its way into two separate sections of the Revised Statutes.
One was codified in REV. STAT. § 5508, 18 Stat. 1073 (1875) (current version at 18 U.S.C. § 241 (1970)) [hereinafter cited as REV. STAT. § 5508 (1875)] which provided: If two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.
The other, REV. STAT. § 5519, 18 Stat. 1076 (1875) [hereinafter cited as REV. STAT. § 5519 (1875)] was declared unconstitutional in United States v. Harris, 106 U.S. 629 (1882), see notes 47-52 infra, and accompanying text, and repealed by Act of March 4, 1909, ch. 321, § 341, 35 Stat. 1154. REV. STAT. § 5519 (1875) had provided: If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment.
The civil conspiracy provision of Section 2 was codified in REV. STAT. § 1980(3), 18 Stat. 349 (1875) (current version at 42 U.S.C. § 1985(3) (1970)) [hereinafter cited as REV. STAT. § 1980(3) (1875)] and provided in pertinent part: If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . ; in any case of conspiracy set forth in this section, if one or more persons engaged therein do,…..
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