# Hamm v. City of Rock Hill/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
* Dissenting Opinions Black Harlan Stewart White
* Linked case(s):
* 236 Ark. 596 379 U.S. 306
Mr. Justice Black, dissenting.
The Civil Rights Act of 1964, validly, I think, made it unlawful for certain restaurants thereafter to refuse to serve food to colored people because of their color. The Court now interprets the Act as a command making it unlawful for the States to prosecute and convict "sit-in" demonstrators who had violated valid state trespass laws prior to passage of the federal Act. The idea that Congress has power to accomplish such a result has no precedent, so far as I know, in the nearly 200 years that Congress has been in existence.
The record shows that the two petitioners in Lupper, No. 5, were part of a group of persons who went to a department store tearoom, seated themselves at tables and at the counter as part of a "sit-in" demonstration, and refused to leave when asked to do so. The Court says that this conduct "could not be the subject of trespass prosecutions, federal or state, if it had occurred after the enactment of the statute." I do not understand from what the Court says that it interprets those provisions of the Civil Rights Act which give a right to be served without discrimination in an establishment which the Act covers as also authorizing persons who are unlawfully refused service a "right" to take the law into their own hands by sitting down and occupying the premises for as long as they choose to stay. I think one of the chief purposes of the 1964 Civil Rights Act was to take such dis- [p319] putes out of the streets and restaurants and into the courts, which Congress has granted power to provide an adequate and orderly judicial remedy.
Even assuming, however, that the Civil Rights Act was intended to let people who enter restaurants take the law into their own hands by forcibly remaining when service is refused them, this would be no basis for holding that Congress also meant to compel States to abate convictions like these for lawless conduct occurring before the Act was passed. See Bell v. Maryland, 378 U.S. 226, 318 (dissenting opinion). The judge-made "common law rule" of construction on which the Court relies has been applied heretofore only where there was a repeal of one statute by another—not, as my Brother Harlan points out, where as here a later law passed by Congress places certain restrictions on the operation of the still valid law of a State. But even if the old common-law rule of construction taken alone would otherwise have abated these convictions, Congress nearly a century ago passed a "saving" statute, 1 U.S.C. § 109 (1958 ed.), to keep courts from imputing to it an intent to abate cases retroactively, unless such an intent was expressly stated in the law it passed. That statute says:
   "The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. . . ."
The purpose of this statute is plain on its face—it was to prevent courts from imputing to Congress an intent which Congress never entertained. This was broad, remedial legislation, see Great Northern R. Co. v. United [p320] States, 208 U.S. 452; United States v. Reisinger, 128 U.S. 398; United States v. Ulrici, 3 Dillon 532, 28 Fed. Cas. 328 (No. 16,594) (C.C.E.D.Mo.) (opinion of Mr. Justice Miller on circuit), and by any fair reading it is broad enough to wipe out any and every application of the common-law rule which it was designed to do away with, unless judge-made rules of construction have some sort of superiority over congressionally enacted statutes. In United States v. Chambers, 291 U.S. 217, and Massey v. United States, 291 U.S. 608, the only cases which the Court cites as authority for disregarding the federal saving statute, this Court made clear that the saving statute was not involved in any way since the abatement there was by force of the Twenty-first Amendment, and of course an amendment to the Constitution supersedes an Act of Congress. See 291 U.S., at 223–224. By today's discovery of a "long-established rule of our cases," the Court has now put back on Congress the burden of spelling out expressly, statute by statute, in laws passed hereafter that it does not want to upset convictions for past crimes, a burden which Congress renounced nearly 100 years ago and which it did not know it had when it passed the 1964 Act.
Furthermore, I have grave doubt about the power of Congress acting under the Commerce Clause and the Necessary and Proper Clause to take the unprecedented step of abating these past state convictions. Yet the [p321] Court judicially declares that "there is no public interest to be served" in upholding the convictions of these trespassers, a conclusion of policy which I had thought was only for legislative bodies to decide. See Ferguson v. Skrupa, 372 U.S. 726.
In the early days of this country this Court did not so lightly intrude upon the criminal laws of a State. In Cohens v. Virginia, 6 Wheat. 264, 443, decided in 1821, Chief Justice John Marshall speaking for the Court said:
   "To interfere with the penal laws of a State, where they are not levelled against the legitimate powers of the Union, but have for their sole object the internal government of the country, is a very serious measure, which Congress cannot be supposed to adopt lightly, or inconsiderately. The motives for it must be serious and weighty. It would be taken deliberately, and the intention would be clearly and unequivocally expressed.
   "An act, such as that under consideration ought not, we think, to be so construed as to imply this intention, unless its provisions were such as to render the construction inevitable."
Nothing in the language or history of the 1964 Act makes the Court's reading into it of a purpose to interfere with state laws "inevitable" or even supportable, nor in any way justifies the Court's offhand assertion that it is carrying out the "legislative purpose". For I do not find one paragraph, one sentence, one clause, or one word in the 1964 Act on which the most strained efforts of the most fertile imagination could support such a conclusion. And in what is perhaps the most extensive and careful legislative history ever compiled, dealing with one of the most thoroughly discussed and debated bills ever passed by Congress, a history including millions and millions of words written on tens of thousands of pages contained in [p322] volumes weighing well over half a hundred pounds, in which every conceivable aspect and application of the 1964 Act were discussed ad infinitum, not even once did a single sponsor, proponent or opponent of the Act intimate a hope or express a fear that the Act was intended to have the effect which the Court gives it today.
* ↑ See my concurring opinion in Heart of Atlanta Motel, Inc. v. United States, 379 U.S., p. 268.
* ↑ Sections 201–203, 78 Stat. 243–244, 42 U.S.C. §§ 2000a to 2000a-2 (1964 ed.).
* ↑ The Court says that:  "The federal saving statute was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement such as that illustrated by the application of the rule in Tynen decided in 1871. There a substitution of a new statute with a greater schedule of penalties was held to abate the previous prosecution." Ante, p. 314. There is no support for this statement in the language of the statute, in its legislative history, or in subsequent decisions under it.