Harrison v. National Association for the Advancement of Colored People/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting.

The rule invoked by the Court to require the Federal District Court to keep hands off this litigation until the state court has construed these laws is a judge-made rule. It was fashioned in 1941 in the decision of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, as a device to avoid needless decisions under the Federal Constitution where a resolution of state law questions might make those adjudications unnecessary. Since that time, the rule of the Pullman case has been greatly expanded. It has indeed been extended so far as to make the presence in federal court litigation o a state law question a convenient excuse for requiring the federal court to hold its hand while a second litigation is undertaken in the state court. This is a delaying tactic that may involve years of time and that inevitably doubles the cost of litigation. When used widespread, it dilutes the stature of the Federal District Courts, making them secondary tribunals in the administration of justice under the Federal Constitution.

With all due deference, this case seems to me to be the most inappropriate one of all in which to withhold the hand of the Federal District Court. Congress has ordained in the Civil Rights Act that 'All persons within the jurisdiction of the United States shall have the same right in every State * *  * to sue, be parties, give evidence *  *  * as is enjoyed by white citizens *  *  * .' 42 U.S.C. § 1981, 42 U.S.C.A. § 1981. It has subjected to suit 'Every person who, under color of any statute * *  * subjects, or causes to be subjected, any citizen of the United States or other person *  *  * to the deprivation of any rights *  *  * secured by the Constitution and laws *  *  * .' 42 U.S.C. § 1983, 42 U.S.C.A. § 1983; and has given the District Courts 'original jurisdiction' of actions 'to redress the deprivation, under color of any State law, *  *  * of any right *  *  * secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens *  *  * .' 28 U.S.C. § 1343, 28 U.S.C.A. § 1343. The latter section was invoked here. From the time when Congress first implemented the Fourteenth Amendment by the comprehensive Civil Rights Act of 1871 the thought has prevailed that the federal courts are the unique tribunals which are to be utilized to preserve the civil rights of the people. Representative Dawes, in the debate on the 1871 bill, asked 'what is the proper method of thus securing the free and undisturbed enjoyment of these rights?' Looking to the Act which eventually became law he answered, 'The first remedy proposed by this bill is a resort to the courts of the United States. Is that a proper place in which to find redress for any such wrongs? If there be power to call into the courts of the United States an offender against these rights, privileges and immunities; and hold him to account there, I submit * *  * that there is no tribunal so fitted, where equal and exact justice would be more likely to be meted out in temper, in moderation, in severity, if need be, but always according to the law and fact, as that great tribunal of the Constitution.' Cong. Globe, 42d Cong., 1st Sess. 476 (1871).

It seems plain to me that it was the District Court's duty to provide this remedy, if the appellees, who invoked that court's jurisdiction under the Civil Rights Act, proved their charge that the appellants, under the color of the Virginia statutes, had deprived them of civil rights secured by the Federal Constitution. See Hague v. C.I.O., 307 U.S. 496, 530-532, 59 S.Ct. 954, 83 L.Ed. 1423.

Judge Soper, speaking for the three-judge District Court, said that the five statutes against which the suits were directed 'were enacted for the express purpose of impeding the integration of the races in the public schools' of Virginia. 159 F.Supp. 503, 511. He reviewed at length the legislative history of the five Virginia statutes (Id., 511-515) concluding that 'they were passed to nullify as far as possible the effect of the decision' of this Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. Id., 159 F.Supp. 511. They were indeed 'parts of the general plan of massive resistance' which Virginia inaugurated against those decisions. Id., 515.

Of course Virginia courts were not parties to the formulation of that legislative program. But they are interpreters of Virginia laws and bound to construe them, if possible, so that the legislative purpose is not frustrated. Where state laws made such an assault as these do on our decisions and a State has spoken defiantly against the constitutional rights of the citizens, reasons for showing deference to local institutions vanish. The conflict is plain and apparent; and the federal courts stand as the one authoritative body for enforcing the constitutional right of the citizens.

This Court has had before it other state schemes intended to emasculate constitutional provisions or circumvent our constitutional decisions. In Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, a 'Grandfather Clause' in an Oklahoma suffrage statute, exempting citizens who were qualified to vote on January 1, 1866, and their lineal descendants, from the requirements of a literacy test was said to have 'no discernible reason other than the purpose to disregard the prohibitions of the (Fifteenth) Amendment,' and was struck down because in 'direct and positive disregard' of that Amendment. Id., 238 U.S. at pages 363, 365, 35 S.Ct. at pages 930, 931. Oklahoma sought to avoid the effects of that decision (rendered in 1915) by requiring all qualified voters in 1916 to register within a named 12-day period, else the right to vote would be lost to them permanently. Persons who voted in the 1914 election were, however, exempt from the requirement. The new statute was invalidated, this Court noting that the Fifteenth Amendment barred 'sophisticated as well as simpleminded' 'contrivances by a state to thwart equality in the enjoyment of the right to vote.' Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281. The Boswell Amendment to the Alabama Constitution required prospective voters to understand and explain a section of the Alabama Constitution to the satisfaction of a registrar. A three-judge court found it to be a device in purpose and in practice to perpetuate racial distinctions in regulation of suffrage. We affirmed the judgment without requiring any submission of the amendment to the state courts to see how they might narrow it. Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093, affirming D.C., 81 F.Supp. 872. All these cases originated in federal courts and implicated state laws evasive of our decisions; and we decided them without rerouting them through the state courts.

A similar history is evidenced by the 'White Primary' cases. It starts with Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, where a Texas statute prohibiting Negroes from participating in Democratic Party primary elections was characterized as a 'direct and obvious infringement' of the Fourteenth Amendment's Equal Protection Clause. As a result of that decision, the Texas Legislature enacted a new statute authorizing the State Executive Committee of a political party to prescribe the qualifications for voters in its primary elections. Pursuant thereto the Democratic Party Committee adopted a resolution limiting the voting privilege to white Democrats. Finding that the Committee was an arm of the State, and that it discharged its power in such a way as to 'discriminate invidiously between white citizens and black' this Court overturned the restriction. Nixon v. Condon, 286 U.S. 73, 89, 52 S.Ct. 484, 487, 76 L.Ed. 984. In Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, we held that approval by the state party convention of he discriminating prohibition did not save it. And see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. These cases too originated in federal courts and were aimed at state laws at war with our decisions. Here, again, we decided them without making the parties first repair to the state courts for a construction of the state statutes.

We need not-we should not-give deference to a state policy that seeks to undermine paramount federal law. We fail to perform the duty expressly enjoined by Congress on the federal judiciary in the Civil Rights Acts when we do so.

To return to the present case: the error, if any, of the District Court was not in passing on the constitutionality of three of the five Virginia statutes now before us but in remitting the parties to the Virginia courts for a construction of the other two.