The Detroit tribune. (Detroit, Mich.) 1935-1966, 1938-02-12
bill

reiterated I'm the debate on this
bill the ancient constitutional fal-
lacy that Federal power is lacking
where the Stale officers involved
aye derelict also IN their duty I'M
der state law This 49,. view has
long since given way 10 the reaii-
cation that a state can act only
through officers and instrumental
tiles. and that II the nth amend
meni Is 10 have any Significance.
the Federal power must extend tul
the acts OF State officers regard
less OF their basis in State anthori-
ty.'
Among other cases on this point,
Senator Wagner cited from re-
cent Supreme Court decision In
which Justice Brandeis said as fol-
lows:
THE prohibition OF the 18th
Amendment. II Is true has reference
exclusively to action by the State.
as distinguished from action by
private individuals But acts
done by virtue ola public posi-
tion under a state Government 49,.
and In the name and for the State
are not TO &c treated as II
they were the acts of private indl-
viduals, although in doing them
the official acted contrary 10 an
express command Of the state law.
When y state official. acting un-
der color OF state authority. in
yades. In the course OF his duties,
Il private right secured by the fed
eral Constitution. that right is vio-
lated even II the state officer not
only exceeded his authority but
lisregarded special commands OF
the state law"
Contending that State action
under the iith Amendment includ-
ed acts Of omission as well as
commission" Senator Wagner de-
clared:
40 say that Congress may not
lcgislate against the most flag
|.rant. wilful failure OF the State 10
act when action Is imperative 10
preserve constitutional rights un-
der the 18th Amendment. is to
make a travesty of the constitu-
iiunal guaranty This argument is
contrary 10 the plain intendment
OF the constitutional provision. II
Is repugnant TO common sense:
and It is repudiatcd by the prcce-
dents.
The Supreme Court has repeat
pdly said that the nth Amendment
not only prohibited positive action.
but denied TO any State the power
TO withhold the equal protection
OF the laws. =. And time and
again the Supreme Court has held
that the State may not stand idly
by with folded hands, that II Il
bound under the 18th Amendment
10 afford corrective process where
the failure TO do so would result
In denial of constitutional
rights: for example. where mob
domination and community hyster-
10 made a fair trial impossible:
where conviction was alleged 20
have been obtained by testimony
known by the prosecuting attorney
20 have been perjured and whore
a conviction was obtained through
a confession known to the trial
Judge To have been procured by
physical torture
Citing the two recent Scottsboro
cases In the Supreme Court as
the clearest illustrations OF the
principle that the nth Amendment
applies TO acts OF omission rs well
as commission by the state Off
GERS Senator Wagner said
In Powell " Alabama the SUI
preme Court found :. that The
failure of The trial Judge In the
state court to make a sufficient or
timely designation Of counsel for
the accused violated the 18th
Amendment. And in Norris V. Ala
bama, the Supreme Court likewise
held that the systematic failure OF
State officers to include Negroes
on the jury lists In State trials
violated the 14th Amendment 49,
If the Constitution guards zeal
ously the attributes OF the trial IT,
self. as shown by these cases and
many others, and prohibits the
conduct OF a trial dominated by
hostile mob sentiment. then OBJ
viously II would protect against a
denial OF any trial whatever. That
Is exactly what L does here under
the antilynching bill, to the ex-
tent that the State is shown TO be
responsible for that denial through
the wilful and negligent failure
to protect persons accused OF
crime.
This principle. Senator Wag-
ner declared. has actually been
applied by the United kStates SUI
preme Court In a lynching situa
ton. Senator Wagner referred ex-
tensively 10 a decision OF the Su-
preme Court I'm 1909 holding
state sheriff In contempt for con-
niving In the lynching OF Negro
pending an appeal to the Supreme
Court from a verdict OF conviction
in the state court"
In answer to the objections that
this principle goes too far in ex-
tending the Federal Power Sena-
tor Wagner quoted a statement by
Justice Cardozo In the Social Sc
curIty cases decided last year.
I'VE do not fix the outermost
line. Enough for present purposes
that wherever the line may be.