Monthly Archives: January 2017


United States v. Bajakajian: Forfeiture of Sum of Money; Excessive Fines Clause (06/22/1998)

United States v. Bajakajian

Does the forfeiture of $357,144 in cash, a sum involved in the offense of failure to report property in excess of $10,000 while attempting to leave the country, violate the Eighth Amendment’s Excessive Fines Clause?

Argued: 11/04/1997

Decision Date: 06/22/1998

Decision Record: 5-4; yes

Justices Majority: John Paul Stevens, David Souter, Clarence Thomas, Ruth Ginsburg, Stephen Breyer

Justices Dissenting: William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy

Effect of the Decision

This case clarified that a forfeiture of a sum as great as $357,144 in cash for an offense like failure to report property in excess of $10,000 while attempting to leave the country is a violation of the Excessive Fines Clause, and is considered an unreasonable punishment.

In Favor

In the representation of the side of the United States, attorney Irving L., Gornstein said, “Respondent was about to board a flight to Syria when a Customs inspector informed him that he was required to file a currency report if he was taking more than 10,000 dollars with him.

Respondent claimed that he was taking less than 10,000 dollars and he therefore did not file a currency report.

Customs inspectors searched respondent and his possessions and found more than 350,000 dollars in cash.

Respondent subsequently pleaded guilty to wilfully failing to file a currency report as he was about to transport more than 350,000 dollars outside this country.

For that offense, Congress has mandated forfeiture of the unreported currency.

The Court of Appeals for the Ninth Circuit held, however, that the forfeiture of any of that currency would constitute an excessive fine.

The unreported currency is an instrumentality of a reporting offense and may be forfeited as such without violating the Excessive Fines Clause, and second, even if it is not an instrumentality, its forfeiture is a permissible punishment for what is a serious criminal offense.

The manner of satisfying the Excessive Fines Clause is by showing that it is property that’s seized… one way of satisfying it, it is showing that the property that is seized is in fact an instrumentality of the offense, and there… questions may arise about whether it has a sufficiently close connection to the offense to be classified properly as an instrumentality, but once it is, then that would satisfy the Excessive Fines Clause.”


Then in opposition, representing Bajakajian, attorney James E. Blatt claimed, “This case, a criminal in personam matter, is here because a district court determined that forfeiture of 357,144 dollars would be grossly disproportionate under the Eighth Amendment for a failure-to-declare offense.

The decision was based on the following factual findings by the district court: that the money involved was lawful money for a lawful purpose; that the crime was committed in reference to cultural differences, and that the lies that Mr. Bajakajian stated grew out of fear.

He was a minority there, an Armenian, and where he grew up he was very frightened and afraid of the Government in reference to moneys taken in and out.

When he left this country to pay a lawful debt, and he was going to Cyprus, not to Syria, he thought that he would be harmed, or the money might be taken from him if he showed how much money he had.

We indicated that to the district court.

The district court took that into consideration, and took also into consideration the lies that he made, which were primarily out of fear, when it came up with a grossly disproportionate analysis.

It’s a factor that has to be considered in reference to whether the money was lawful, and for a lawful purpose, because it relates to the culpability.

If one lies not… if one lies because he or she is not involved in a criminal enterprise, but because they are frightened, and we’re not trying to excuse the culpability of Mr. Bajakajian, but it’s a factor for a court to consider in reference to punishment.”


The majority opinion, written by Justice Clarence Thomas, said, “Finally, we must reject the contention that the proportionality of full forfeiture is demonstrated by the fact that the First Congress enacted statutes requiring full forfeiture of goods involved in customs offenses or the payment of monetary penalties proportioned to the goods’ value. It is argued that the enactment of these statutes at roughly the same time that the Eighth Amendment was ratified suggests that full forfeiture, in the customs context at least, is a proportional punishment. The early customs statutes, however, do not support such a conclusion because, unlike §982(a)(1), the type of forfeiture that they imposed was not considered punishment for a criminal offense.

Certain of the early customs statutes required the forfeiture of goods imported in violation of the customs laws, and, in some instances, the vessels carrying them as well. See, e.g., Act of Aug. 4, 1790, §27, 1 Stat. 163 (goods unladen without a permit from the collector). These forfeitures, however, were civil in rem forfeitures, in which the Government proceeded against the property itself on the theory that it was guilty, not against a criminal defendant. See, e.g., Harford v. United States, 8 Cranch 109 (1814) (goods unladen without a permit); Locke v. United States, 7 Cranch 339, 340 (1813) (same). Such forfeitures sought to vindicate the Government’s underlying property right in customs duties, and like other traditional in rem forfeitures, they were not considered at the Founding to be punishment for an offense. See supra, at 8—9. They therefore indicate nothing about the proportionality of the punitive forfeiture at issue here. Ibid.

Other statutes, however, imposed monetary ‘forfeitures’ proportioned to the value of the goods involved. See, e.g., Act of July 31, 1789, §22, 1 Stat. 42 (if an importer, ‘with design to defraud the revenue,’ did not invoice his goods at their actual cost at the place of export, ‘all such goods, wares or merchandise, or the value thereof . . . shall be forfeited’); §25, id., at 43 (any person concealing or purchasing goods, knowing they were liable to seizure for violation of the customs laws, was liable to “forfeit and pay a sum double the value of the goods so concealed or purchased”). Similar statutes were passed in later Congresses.

These ‘forfeitures’ were similarly not considered punishments for criminal offenses. This Court so recognized in Stockwell v. United States, 13 Wall. 531 (1871), a case interpreting a statute that, like the Act of July 31, 1789, provided that a person who had concealed goods liable to seizure for customs violations should ‘forfeit and pay a sum double the amount or value of the goods.’ Act of Mar. 3, 1823, ch. 58, §2, 3 Stat. 781—782. The Stockwell Court rejected the defendant’s contention that this provision was “penal,” stating instead that it was “fully as remedial in its character, designed as plainly to secure [the] rights [of the Government], as are the statutes rendering importers liable to duties.” 13 Wall., at 546. The Court reasoned:

‘When foreign merchandise, subject to duties, is imported into the country, the act of importation imposes on the importer the obligation to pay the legal charges. Besides this the goods themselves, if the duties be not paid, are subject to seizure . . . . Every act, therefore, which interferes with the right of the government to seize and appropriate the property which has been forfeited to it . . . is a wrong to property rights, and is a fit subject for indemnity.’Id., at 546.

Significantly, the fact that the forfeiture was a multiple of the value of the goods did not alter the Court’s conclusion:

‘The act of abstracting goods illegally imported, receiving, concealing, or buying them, interposes difficulties in the way of a government seizure, and impairs, therefore, the value of the government right. It is, then, hardly accurate to say that the only loss the government can sustain from concealing the goods liable to seizure is their single value … . Double the value may not be more than complete indemnity.’ Id., at 546—547.

The early monetary forfeitures, therefore, were considered not as punishment for an offense, but rather as serving the remedial purpose of reimbursing the Government for the losses accruing from the evasion of customs duties. They were thus no different in purpose and effect than the in rem forfeitures of the goods to whose value they were proportioned. Cf. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972) (per curiam) (customs statute requiring the forfeiture of undeclared goods concealed in baggage and imposing a monetary penalty equal to the value of the goods imposed a ‘remedial, rather than [a] punitive sanctio[n]’). By contrast, the full forfeiture mandated by §982(a)(1) in this case serves no remedial purpose; it is clearly punishment. The customs statutes enacted by the First Congress, therefore, in no way suggest that §982(a)(1)’s currency forfeiture is constitutionally proportional.”

Then, in the dissenting side, Justice Anthony Kennedy wrote, “The Court’s holding may in the long run undermine the purpose of the Excessive Fines Clause. One of the main purposes of the ban on excessive fines was to prevent the King from assessing unpayable fines to keep his enemies in debtor’s prison. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 267 (1989); 4 W. Blackstone, Commentaries on the Laws of England 373 (1769) (‘[C]orporal punishment, or a stated imprisonment, … is better than an excessive fine, for that amounts to imprisonment for life. And this is the reason why fines in the king’s court are frequently denominated ransoms … .’) Concern with imprisonment may explain why the Excessive Fines Clause is coupled with, and follows right after, the Excessive Bail Clause. While the concern is not implicated here–for of necessity the money is there to satisfy the forfeiture–the Court’s restrictive approach could subvert this purpose. Under the Court’s holding, legislators may rely on mandatory prison sentences in lieu of fines. Drug lords will be heartened by this, knowing the prison terms will fall upon their couriers while leaving their own wallets untouched.

At the very least, today’s decision will encourage legislatures to take advantage of another avenue the majority leaves open. The majority subjects this forfeiture to scrutiny because it is in personam, but it then suggests most in rem forfeitures (and perhaps most civil forfeitures) may not be fines at all.Ante, at 8, 18, and n. 16; but see ante, at 9, n. 6. The suggestion, one might note, is inconsistent or at least in tension with Austin v. United States, 509 U.S. 602 (1993). In any event, these remarks may encourage a legislative shift from in personam to in rem forfeitures, avoiding mens rea as a predicate and giving owners fewer procedural protections. By invoking the Excessive Fines Clause with excessive zeal, the majority may in the long run encourage Congress to circumvent it.”

My Opinion:

In this case, I disagree with the majority opinion. Bajakajian committed an offense and broke the law by attempting to leave the country with an excess of $10,000. He brought $357,144 in cash with him, which is a violation of 31 U.S.C. Section 5316. According to 18 U.S.C. Section 982, Bajakajian was supposed to turn in all the money that he illegally attempted to bring with him. This is not a violation of the Eighth Amendment’s Excessive Fines Clause, because the money the respondent should have turned in cannot be considered a “fine.” Under the law, he should have forfeited his entire sum of $357,144 in cash. This wouldn’t have been difficult for Bajakajian, seeing as he already had the money with him in cash. Even if this were considered a fine, it cannot be seen as “excessive,” because 31 U.S.C. Section 5316 clearly states that no sum of money over $10,000 in cash can leave the United States. This law was violated by the respondent. Also, 18 U.S.C. Section 982 explains that any sums of money that tries to leave the US can be confiscated. So under this law, the forfeiture of Bajakajian’s sum of $357,144 was not a violation of the Eighth Amendment. It simply cannot be declared “unconstitutional” under the Excessive Fines Clause if the sum of money asked to be turned in was not excessive nor a fine. All actions performed by the government in this case was rightfully justified.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Brandenburg v. Ohio: Public Speech Advocating Illegal Activities, Ohio Criminal Syndicalism Law (06/09/1969)

Brandenburg v. Ohio

Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, infringe upon Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?

Argued: 02/27/1969

Decision Date: 06/09/1969

Decision Record: 8-0; yes

Justices Majority: Earl Warren, Byron White, Hugo Black, John Harlan, Potter Stewart, Thurgood Marshall, William Brennan, William Douglas

Justices Dissenting: None

Effect of the Decision

This case clarified two conditions that must be satisfied when evaluating speech acts:  (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”

In Favor

In the representation of the side of the Brandenburg, attorney Allen Brown said, “We have before us case arising in the State of Ohio under a conviction under Ohio’s Criminal Syndicalism Act.

We have indeed before us something of rarity.

It is as far as I know a third case ever tried under Ohio’s Criminal Syndicalism Act and the first to ever reach the appellate level.

There was earlier in Ohio when their peculiar proceedings in which a prosecutor could bring a proceeding before the Supreme Court on appeal for a question of law only.

A proceeding in which — a motion was made in the lower court in Ohio, attacking the constitutionality of Ohio’s Criminal Syndicalism Law.

The lower court in Ohio held the law to be unconstitutional.

It was appealed to the Supreme Court in State versus Kassay and in what is basically in advisory opinion.

The Court stated that it was constitutional.

If the Court also stated several engaging other things.

It stated that the First Amendment did not apply to the states of the union.

It also stated that the measure of its application was an issue in its constitutionality and it would attend the first trial of a case to see what is the proper measure of its application.

The Court waited patiently for the first application to a case that arose some 40 years later in this case and surprisingly despite the invitation here sent out in Kassay, the Court declined to even hear his constitutional question on the application in this case.

It in fact defaulted to this Court, Ohio’s privilege are setting forth the limitations of the application of its statute.

Ohio’s privileges are setting forth potentiality of clarification and delineation of a statute which obviously on its face rushes head long into the First Amendment.

These are the facts in this case.

A television reporter receives a telephone call indicating that if he wanted to he could come and take movies of a Ku Klux Klan meeting.

He came.

He met some hooded figures and arrangements were made for the taking of a movie.

A movie was taken in which a cross was burned, some figures milled about, and yelled some stupid and rather, a senseless slogans and then a single figure was panned on, and he made a speech, a speech full of conditions, precedents, and reservations, hyperbola self-evidently stupid and silly.

He asserted that the clan was the largest organization in the State of Ohio.

He then went on in a — with a condition precedent that if the various branch is the Government including this Court, do not mend their ways that revengeance, a word of his own coining I assume would be taken.

He did not specify the revengeance and we do not know what particular aspect of the democratic process he was going to involve himself in revengeance.

He then spoke of a March not in identifying it as an armed march or any sort of march of any force or violence into Washington and then into two southern states, incidentally, raising federal questions perhaps rather than internal state questions.”


Then in opposition, representing the state of Ohio, attorney Leonard Kirschner claimed, “I do not know why the film is not here at the present time.

I do know that I — well that’s I did know where it was as of two months ago.

I viewed it subsequent to the Supreme Court of Ohio hearings and it’s in the clerk’s office of the Clerk of the Hamilton County, Court of Common Pleas in his possession, locked up in a file, fireproof file I might add and I don’t know why it is not here.

I’m certain that it can be forwarded to this Court for examination.

I will never to follow through on the Court’s request.

The Court’s permission as I take it basically there are two points involved in this case.

One, is the Ohio Statute on Criminal Syndicalism and two, the evidence that was presented to a judge and jury upon which a finding and verdict of guilty was returned.

Now, counsel, I believe that the Ohio Criminal Syndicalism law is constitutional.

I have cited various authorities relative to my beliefs in this matter in my brief.

I believe that the basic matter before this Court is the application of the evidence as was presented to the jury to determine whether or not there was sufficient evidence upon which a jury could return a verdict.

I believe that in this case when counsel says sending the Jews back to Israel, let’s give them back to the dark garden that this might not involved violence.

I would like him perhaps in his reply to explain how the statement, “Bury the niggers” would not constitute a violent form of actions.

Now in this case, there is two basic parts of the film.

One, that was taken inside of a room in which the defendant Clarence Brandenburg was identified and I don’t believe there is any question or any in the record either between the appellant and the appellee in this matter relative to his identification as he being the person saying, this is an organizer’s meeting we have had quite a few members here today which are we have had hundred — hundreds of members throughout the state and so forth.

Then there is a second portion of the film in which a group of people are walking or marching around a burning cross, hooded, armed, shouting profanities in which there is a question whether or not the defendant himself said the words as attributed to him in the transcript and on page 5.

‘How far is the nigger going to — yeah.’

‘Send the Jews back to Israel’ and so forth with the other profanities.

There is some evidence in the transcript itself which could indicate as a jury sitting and listening in that the defendant himself made one or more of these statements, and I apologize to the Court for not having this as part of my brief.

I notified counsel of the possibility of my bringing this matter up.

Ohio has a section in its code.

Ohio Revised Code Section 1.17 which provides, whoever aids, abets, or procures another to commit an offense may be prosecuted as if he were the principal offender.

We have a group of people marching around as an organizer’s meeting toward the acts of violence and in that they had attributed and desired the suppression of the Negro.”


The opinion in this case was unanimous. The opinion said, “The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for ‘advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for

voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.

Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal sua sponte “for the reason that no substantial constitutional question exists herein.” It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.

The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of ‘revengeance’ was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California. The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas. But Whitney has been thoroughly discredited by later decisions.. These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we  said in Noto v. United States,

the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.

A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who ‘advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform’; or who publish or circulate or display any book or paper containing such advocacy; or who ‘justify’ the commission of violent acts ‘with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’ with a group formed ‘to teach or advocate the doctrines of criminal syndicalism.’ Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.”

My Opinion:

In this case, I disagree with the majority opinion. I personally don’t understand their decision. Ohio’s criminal syndicalism prohibitted public speech that advocated various illegal activities, and Brandenburg violated this by giving a speech in a Ky Klux Klan meeting, which encouraged violent behavior. If not for Ohio’s syndicalism or the two conditions established by the court:  (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action”, then Brandenburg’s rights may have been infringed upon. However, Ohio’s criminal syndicalism and the two requirements used when evaluating a speech act are akin to one another. Brandenburg’s speech was to promote “imminent lawless action.” This violates both the requirements of the court and Ohio’s criminal syndicalism. Therefore, Brandenburg’s rights were not violated, due to these exceptions.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Keys and lock the door on the background of solar garden

Jones v. Alfred H. Mayer: Refusal to Make Estate Transaction Due to Skin Color (06/17/1968)

Jones v. Alfred H. Mayer

Did the defendant violate 42 U.S.C. Section 1982 which guarantees equal rights to all citizens making real estate transactions?

Argued: 03/31/1968; 04/01/1968

Decision Date: 06/17/1968

Decision Record: 7-2; yes

Justices Majority: Earl Warren, Hugo Black, William Douglas, William Brennan, Potter Stewart, Abe Fortas, Thurgood Marshall

Justices Dissenting: John Harlan, Byron White

Effect of the Decision

This case upheld clarified that one cannot be discriminated against for their race when making real estate transactions.

In Favor

On the side of Jones, attorney Samuel H. Liberman said, “This case arises on a petition for certiorari to the Eighth Circuit Court of Appeals on a judgment which simply affirmed a holding by the United States District Court for the Eastern District of Missouri dismissing the amended complaint in these actions for failure to state the cause of action upon which relief can be granted.

Therefore, the facts which are well pleaded in the First Amendment complaints set out in the appendix are the facts which we are dealing with.

These facts alleged that the respondents, a group of related corporations and one individual or developers of a subdivision known Paddock Woods in St. Louis County, Missouri.

They also are developers of adjacent subdivisions known as Paddock Estates, Paddock Meadows, Paddock Hills, and Wedgwood and perhaps some others.

They received permission from various estate agencies to build these divisions including Paddock Woods.

They layout the streets and the sewers and the recreation facilities and various other facilities and then they plot out certain lots and they sell houses and lots to the public.

The method of selling is by buildings and display houses of different types on the — at the location of the subdivision.

And then the public looks at the display house and the buyer, if he likes one of the houses, will enter into a contract by which the respondents will build a certain house according to the choice of the buyer on a certain lot.

And when it’s completed, the transfer of the property is then made.

It’s further alleged that the estate in the various governmental subdivisions of the estate are involved with the building of the subdivision both in the approval and the assistance which they give to the builder and from the standpoint of the function — community functions which they delegate to the builder with respect to the government of this community.

The facts out of this case in particular arose from Mr. and Mrs. Joseph Jones, the petitioners went out to the subdivision and saw a house which they wanted to buy and attempted buy it, and it is alleged that the respondents refused to deal with them or to sell them a house solely because Mr. Jones is a Negro.

The question presented has led to certain refusal solely because of the raise of the prospective buyer is in violation of the law of the United States.

In our brief, this question took two forms, firstly, whether the conduct is prohibited by Section 1978 of the revised statutes 42 U.S.C., Section 1982.

Secondly, whether regardless of the statute on the particular facts of the case due to the nature of the subdivision, the developer would be barred from discriminating in excluding Negroes even without a statute because of the amount of state action which would be involved in the building of the subdivision.

Also in our brief, we broke down the question concerning the statute into its interpretation and as to whether if interpreted as barring this kind of conduct by developer whether that would be a constitutional — constitutionally valid statute.

Actually, it has been conceded by the respondents that such interpretation would be constitutional and in fact the court below, the Court of Appeals, Judge Blackmun held in his opinion there was a matter of interpretation of the statute rather than a constitutional question.

So, addressing my first — myself first to the statutory question rather than the constitutional question, we think that the statute by its plain terms bars a builder of a private subdivision from excluding persons from buying and living in that subdivision because of their race.”


Then in opposition, Mayer is represented by attorney Israel Treiman, who says, “The Court has already touched through its questioning on what I believe are some of the most sensitive areas in this entire case especially the questions directed by Mr. Justice White at the very end which I think clearly indicate the profound complications and the very troublesome problems and difficulties that will arise inevitably if this Court should construe Section 1982 as the petitioners and the government and the amici wanted to.

I, speaking of the amici, may it please the Court in the few minutes that I have left, I should like to make few general observations as Your Honors have probably observed.

There are great many amici briefs that have been filed in this case in support of the petitioners and I must confess that when these briefs started coming to my office I was not a little shaken.

And it wasn’t — it wasn’t because — I was disturbed over the fact that with all these many organizations and fine lawyers on one side, I was being left in a somewhat friendless position in this courtroom.

I’ve become sort of accustomed to that back home where even some of my good friends were beginning to look upon me as if I had suddenly become afflicted with leprosy.

What disturbed me, may it please the Court, what gave me real concern was how I was suppose to deal with all of these good briefs and they are excellent briefs especially the two that have been mentioned here.

The — I’m talking now but the amici briefs, one by the government and the other by group of national organizations headed by one that calls itself the National Committee against Discrimination in Housing, which I shall refer to as I have in my brief as the NCADH brief.

And speaking of that brief, may it please the Court, with reference to the statements made by the honorable Attorney General, in regard to the effect that segregation, racial segregation has had upon the life of our country, I want to say here and now, personally I bow to nobody when it comes to concern over the plight of the disadvantaged Negro family.

And may I have this, I have read many articles and books on this subject, but as I told the person who I believe was the principal writer of the NCADH brief, I have now seen anywhere a more powerful, a more eloquent description of the terrible — the terrible condition in plight in which not only the children but the adults of the Negro families find themselves by reason of their difficulty in obtaining decent housing.

So that as to that part of the Attorney General’s argument, as far as that part is concern, I assure the Court that I do not quarrel either with the Attorney General or with any of these good friends of the Court who come into this case.

What disturbs me, Your Honors, is the way in which they think this problem should be solved.

And I must say, since I will have only a minute, as I came into the courtroom this morning for the first time, I saw the words that are inscribed over the portals of this courthouse “equal justice under law.”

I must confess my ignorance, I did not know those words were there.

And it struck me that this perhaps goes to the very heart of this case surely nobody would deny equal justice under the Equal Protection Clause of the Fourteenth Amendment or under Section 1982.

But the other two words are just as important, it seems to me.

It must be under law.

I happen to be a practicing lawyer back home and not a lawyer who assure you, Your Honors, professors to have any great knowledge about constitutional law.

I happen to be what people referred to as the bread and butter type of practicing lawyer.

And while I have that deep sympathy for the conditions that have been described caused by the acute problems of housing, I am also a practicing lawyer.

I have an equal reverence for the orderliness of the law.

And I believe Your Honors that if we are to meet this problem, let us meet it in a way that it’s provided for under our Constitution and under our philosophy of the meaning of law.”


The majority opinion slip was written by Justice Potter Stewart, “Those who opposed passage of the Civil Rights Act of 1866 argued, in effect that the Thirteenth Amendment merely authorized Congress to dissolve the legal bond by which the Negro slave was held to his master. Yet many had earlier opposed the Thirteenth Amendment on the very ground that it would give Congress virtually unlimited power to enact laws for the protection of Negroes in every State. And the majority leaders in Congress — who were, after all, the authors of the Thirteenth Amendment — had no doubt that its Enabling Clause contemplated the sort of positive legislation that was embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then

the trumpet of freedom that we have been blowing throughout the land has given an “uncertain sound,” and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that, under this provision . . . , we may destroy all these discriminations in civil rights against the black man, and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States, and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.

Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery — its “burdens and disabilities” — included restraints upon

those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.

Civil Rights Cases. Just as the Black Codes, enacted after the Civil War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.

Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom — freedom to “go and come at pleasure” and to “buy and sell when they please” would be left with “a mere paper guarantee”if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.

Representative Wilson of Iowa was the floor manager in the House for the Civil Rights Act of 1866. In urging that Congress had ample authority to pass the pending bill, he recalled the celebrated words of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

‘The end is legitimate,’ the Congressman said,

because it is defined by the Constitution itself. The end is the maintenance of freedom. . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality.”

 Then in dissent, Justice John Harlan wrote, “I am not dissuaded from my view by the circumstance that the 1968 Act was enacted after oral argument in this case, at a time when the parties and amici curiae had invested time and money in anticipation of a decision on the merits, or by the fact that the 1968 Act apparently will not entitle these petitioners to the relief which they seek. For the certiorari jurisdiction was not conferred upon this Court ‘merely to give the defeated party in the . . . Court of Appeals another hearing,’ Magnum Co. v. Coty, or “for the benefit of the particular litigants,” Rice v. Sioux City Cemetery, but to decide issues “the settlement of which is of importance to the public, as distinguished from . . . the parties,” Layne & Bowler Corp. v. Western Well Works, Inc., I deem it far more important that this Court should avoid, if possible, the decision of constitutional and unusually difficult statutory questions than that we fulfill the expectations of every litigant who appears before us.

One prior decision of this Court especially suggests dismissal of the writ as the proper course in these unusual circumstances. In Rice v. Sioux City Cemetery, supra, the issue was whether a privately owned cemetery might defend a suit for breach of a contract to bury on the ground that the decedent was a Winnebago Indian and the contract restricted burial privileges to Caucasians. In considering a petition for rehearing following an initial affirmance by an equally divided Court, there came to the Court’s attention for the first time an Iowa statute which prohibited cemeteries from discriminating on account of race, but which would not have benefited the Rice petitioner because of an exception for “pending litigation.” Mr. Justice Frankfurter, speaking for a majority of the Court, held that the writ should be dismissed. He pointed out that the case presented “evident difficulties,” 349 U.S. at 77, and noted that,

[h]ad the statute been properly brought to our attention . . . , the case would have assumed such an isolated significance that it would hardly have been brought here in the first instance.

This case certainly presents difficulties as substantial as those in Rice. Compare what has been said in this opinion with 349 U.S. at 72-73; see also Bell v. Maryland. And if the petition for a writ of certiorari in this case had been filed a few months after, rather than a few months before, the passage of the 1968 Civil Rights Act, I venture to say that the case would have been deemed to possess such “isolated significance,” in comparison with its difficulties, that the petition would not have been granted.

My Opinion:

In this case, I agree with the majority opinion. Mayer’s refusal to make an estate transaction was a complete violation of the constitution, 42 U.S.C. Section 1982, because he did it as a result of Jones’s skin color. 42 U.S.C. Section 1982 clearly guarantees equal rights to all citizens making real estate transactions. This includes people similar to Jones. There are no exceptions, for the Thirteenth Amendment changed that. Therefore, Mayer was wrong to refuse an estate transaction with Jones merely because of his skin color, for it infringes upon the 42 U.S.C. Section 1982 of the Thirteenth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right