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Cases Jurisdictional Failings
Jurisdictional Failings

"Absent required colloquy by magistrate judge, language printed on consent form was not sufficient to inform defendant of his rights under statute allowing defendant charged with misdemeanor to waive trial before district judge and to elect trial before magistrate judge, where the relevant portion of the consent form was three sentences long, and only one of the sentences addressed defendant's right to an Article III judge." U.S.C.A. Const. Art. 3, sec. 1 etseq; 18 U.S.C.A. sec 3401(b); FRCrP 58(b)(2), (b)(3)(A), 18 U.S.C.A. U.S. v. Gochis 196 F.R.D. 519 (2000)
 
"Court may always raise question of subject matter jurisdiction on appeal and in courts below." U,S. v. Prestenbach, 230 F.3d 780 (2000)
 
"Courts can always consider questions as to subject matter jurisdiction whenever raised and even sua sponte." U.S. v. White, 139 F.3d 998 cert den 119 S.Ct 343, 525 U.S. 393, 142 L.Ed.2d 283 (1998)
 
"Jurisdiction over a defendant requires both personal and subject matter jurisdiction." Boles v. State, 717 So.2d 877 (1998)
 
"Courts acquire authority to adjudicate matter if they have both subject matter and in personam jurisdiction." McKinney's CPL v. sec. 1.20 subd. 9. -- People v. Marzban, 660 N.Y.S.2d 808, 172 Misc.2d 987 (1997)
"Subject matter jurisdiction is determined from pleadings." Hall v. State, 933 S.W.2d 363, 326 Ark. 318, 326 Ark. 823 rehearing denied (1996)
 
"In its most fundamental or strict sense, 'jurisdiction' means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties, but the term may also refer to the situation where a court that has jurisdiction over the subject matter has no power to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites; action 'in excess of jurisdiction' by a court that has jurisdiction in a fundamental sense is not void, but only voidable." People v. Burnett, 83 Cal.Rptr.2d 629, 71 Cal.App 151 (1999)
 
"Judgment made when the court lacks subject matter jurisdiction is void." Clark v. State, 727 N.E.2d 18, transfer denied 741 N.E.2d 1247 (2000)
 
"In a criminal action, the trial court must not only have jurisdiction over the offense charged, but over the question which the judgment presumes to decide." State v. Kraushaar, 957 P.2d 1106, 264 Kan. 667 "Information is the only vehicle by which a court obtains and has limits placed on its jurisdiction." -Id (1998)
 
"Court lacked jurisdiction over defendant charged with possession of loaded firearm such as would enable it to entertain defendant's motion to dismiss indictment on ground that diplomatic immunity created legal impediment to his conviction, where defendant failed to appear in court to be arraigned on accusatory instrument." -Id
 
"In legal prosecution, all legal requisites must be complied with to confer jurisdiction on the court in criminal matters, as district attorney cannot confer jurisdiction by will alone." People v. Page, 667 N.Y.S.2d 689, 177 Misc.2d 448 (1998)
Where the court is without jurisdiction, it has no authority to do anything other than to dismiss the case." Fontenot v. State, 932 S.W.2d 185 "Judicial action without jurisdiction is void."-Id (1996)
 
"Jurisdiction means the power of a court to hear and determine a cause, which power is conferred by a constitution or a statute, or both." Penn v. Com. 528 S.E.2d 179, 32 Va.App. 422 (2000)
"A court cannot acquire jurisdiction to try a person for an act made criminal only by an unconstitutional law, and thus, an offense created by an unconstitutional statute, is no longer a crime and a conviction under such statute cannot be a legal cause for imprisonment." State v. Benzel, 583 N.W.2d 434, 220 Wis.2d 588 (1998)
 
"Jurisdiction is determined solely from face of information or indictment." State v. Lainez, 771 So.2d 617, and Snyder v. State 715 So.2d 367, review denied 727 So.2d 911 (2000)
 
"As a prerequisite for presiding over a case , a court must have jurisdiction over the subject matter of an offense and of the person of the defendant; that is, two jurisdictional requirements must be satisfied before a court has authority to hear and determine a particular cause of action." Malone v. Com., 30 S.W.3d 180 (2000)
 
"Lack of subject matter jurisdiction is a non-waivable defect which may be raised at any stage of the proceedings." State v. LaPier, 961 P.2d 1274, 289 Mont. 392, 1998 MT 174 (1998)
"Ruling made in absence of subject matter jurisdiction is a nullity." State v. Dvorak, 574 N.W.2d 492, 254 Neb. 87 (1998)
 
"If the trial court is without subject matter jurisdiction of defendants case, conviction and sentence would be void ab initio." State v. Swiger, 708 N.E.2d 1033, 125 Ohio.App.3d 456, dismissed, appeal not allowed, 694 N.E.2d 75, 82 Ohio St.3d 1411 (1998)
 
"Before a court may exercise judicial power to hear and determine a criminal prosecution, that court must possess three types of jursdiction: jurisdiction over the defendant, jurisdiction over the alleged crime, and territorial jurisdiction." Const. Art. 1 sec. 9, State v. Legg, 9 S.W.3d 111 (1999)
"Without jurisdiction, criminal proceedings are a nullity." State v. Inglin, 592 N.W.2d 666, 274 Wis.2d 764 (1999)
 
"Criminal subject matter jurisdiction is the power of the court to inquire into charged crime, to apply applicable law, and to declare punishment." W.S.A. Const. Art. 7, sec. 8; W.S.A. 753.03, State v. West, 571 N.W.2d 196, 214 Wis.2d 468 , review denied 579 N.W.2d 44, 216 Wis.2d 612 (1997)
 
"Municipal courts do not have jurisdiction to render final judgments on felony charges." Muhammad v. State, 998 S.W.2d 763, 67 Ark.App 262 (1999)
 
"Circuit courts have exclusive original jurisdiction over all misdemeanors which arise out of the same circumstances as a felony also charged." State v. Coble, 704 So.2d 197 (1998)
 
"Circuit court has no jurisdiction to try misdemeanors in the absence of a felony." Short v. State 767 So.2d 575 (2000)
 
"State Constitution establishes exclusive jurisdiction over felony cases in the superior court." State v. Sterling, 535 S.E.2d 329, 244 Ga.App. 328 (2000)
 
"There was no merit to defendant's contention that district court lacked subject matter jurisdiction over him because his crime did not take place on federally owned land and the 10th Amendment reserved drug prosecutions such as his to the states." U.S.C.A. Const. Amend. 10, Comprehensive Drug Abuse Prevention and Control Act of 1970, sec. 401(a), 406, 21 U.S.C.A. secs 841(a), 846. U.S. v. Deering 179 F.3d 592, cert. den. 120 S.Ct 361, 528 U.S. 945, 145 L.Ed.2d 283 (1999)
 
"Whether or not the government takes out the interstate commerce element of an offense has no effect on the district court's subject matter jurisdiction. U.S. v. Degan, 229 F.3d 553, 2000 Fed.App 367P. (2000)
 
"Federal criminal jurisdiction is limited to cases involving activities specifically made criminal by either Federal Constitution or Congress." U.S. v. Corona, 934 F.Supp. 740, affirmed in part 108 F.3d 565 (1996)
 
"Under 'effects doctrine,' a sovereign only possesses jurisdiction to prosecute a crime when, inter alia, the effect within the territory is substantial." U.S. v. Woodward, 149 F.3d 46, cert. den. 119 S.Ct 1026, 525 U.S. 1138, 143 L.Ed.2d 37 (1998)
 
"Under the theory of 'territorial jurisdiction,' jurisdiction to subject the accused to criminal prosecution rests in the courts of the state in which the crime is committed." State v. Liggins, 557 N.W.2d 263, denial of post conviction relief confirmed 2000 WL 1827164 (1996)
 
"Territorial jurisdiction is an essential element of a crime, and a state is required to prove it beyond a reasonable doubt." -Id
 
"Territorial jurisdiction" is question of state's power to prosecute and punish accused for crime and must be proven beyond reasonable doubt." People v. al-Ladkani, 647 N.Y.S.2d 666, 169 Misc.2d 720 (1996)
 
"Jurisprudence of personal jurisdiction in civil matters has no bearing on question whether a person may be brought to a State and tried there for crimes under that State's laws." In re Vasquez, 705 N.E.2d 606, 428 Mass. 842 (1999)
 
"Where the law provides method for acquiring jurisdiction over defendant in criminal action, as by indictment of grand jury, that method must be strictly pursued to acquire jurisdiction." People v. Page, 677 N.Y.S.2d 689, 177 Misc.2d 448 (1998)
 
"If defendant enters plea of not guilty and is in court on day of trial, the court has jurisdiction over his person." State v. Waters, 971 P.2d 538, 93 Wash.App 969 (1999)
 
"Subject matter jurisdiction may not be conferred on a federal court by stipulation, estoppel, or waiver." U.S. v. Burch, 169 F.3d 666. (1999)
 
"Power of courts to proceed, i.e., their jurisdiction over the subject matter, cannot be conferred by mere act of litigant, whether it amounts to consent, waiver, or estoppel, and hence the lack od such jurisdiction may be raised for the first time on appeal." People v. Lopez, 60 Cal.Rptr.2d 511, 52 Cal.App.4th 233 (1997)
 
"Jurisdiction can not be conferred to court by agreement of parties." Akins v. State, 691 So.2d 587 (1997)
 
"Lack of jurisdiction cannot be cured by consent or waived by entry of a guilty plea; doctrine of waiver cannot be effective when court lacks jurisdiction over the case itself." Harrell v. State, 721 So.2d 1185 rehearing denied , review dismissed 728 So.2d 205 (1998)
"Party cannot stipulate to jurisdiction when court lacks it." Sterling v. State, 682 So.2d 694 (1996)
 
"Where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e. it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense." Robinson v. State, 728 A.2d 698, 353 Md. 683 (1999)
 
"Parties cannot confer subject matter jurisdiction upon judicial tribunal by either acquiescence or consent; nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of parties." State v. Trevino, 556 N.W.2d 638, 251 Neb. 344 (1996)
 
"Appearance ticket is not accusatory instrument and its filing does not confer jurisdiction over defendant." People v. Gabbay, 670 N.Y.S.2d 962, 175 Misc.2d 421 appeal denied 678 N.Y.S.2d 26, 92 N.Y.2d 879, 700 N.E.2d 564 (1997)
 
"Service of an appearance ticket on an accused does not confer personal or subject matter jurisdiction upon a criminal court." People v. Giusti, 673 N.Y.S.2d 824, 176 Misc.2d 377 (1998)
 
"No valid conviction can occur if the charging instrument is void." State v. Wilson, 6 S.W.3d 504 (1998)
"Threshold issue of whether court has jurisdiction to resolve pending controversy is fundamental and cannot be ignored; accordingly, court may sua sponte address issue, as subject matter jurisdiction cannot be conferred by agreement of parties, but must be vested in court by constitution or statute." State v. Roberts, 940 S.W.2d 655, on remand 1997 WL334879. (1996)
 
"While superior court lacks authority to try a defendant for a felony charged by information with an offense not previously subjected to a preliminary hearing , violation of this limitation on the superior court's power would constitute action in excess of jurisdiction, waivable error, and not non-waivable subject matter jurisdiction." People v. Burnett, 83 Cal.Rptr.2d 629, 71 Cal.App.4th 151 (1999)
 
"Trial court acts without jurisdiction when it acts without inherent or common law authority, nor any authority by statute or rule." State v. Rodriguez, 725 A.2d 635, 125 Md.App 428, cert den 731 A.2d 971, 354 Md. 573 (1999)
 
"Criminal law magistrates have no power of their own and are unable to enforce any ruling." V.T.C.A., Government Code sec. 54.651 et seq., Davis v. State, 956 S.W.2d 555 (1997)
 
"A court's authority to exercise its subject matter jurisdiction over a case may be restricted by Filure to comply with statutory requirements that are mandatory in nature and, thus, are prerequisite to court's lawful exercise of that jurisdiction." Moore v. Com., 527 S.E.2d 406, 259 Va. 431 (2000)
 
"Only Congress can make an act a crime, affix punishment to it, and declare court that shall have jurisdiction." U.S. v. Beckford, 966 F.Supp. 1415 (1997)

 

 


United States v Guest 383 U S 745  1966  Right to Travel

United States v Guest, 383 U S 745, March 28, 1966
HARLAN, J., Concurring in Part, Dissenting in Part
SUPREME COURT OF THE UNITED STATES
383 U.S. 745
United States v. Guest
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF GEORGIA
 
No. 65 Argued: November 9, 1965 --- Decided: March 28, 1966
 
MR. JUSTICE HARLAN, concurring in part and dissenting in part.
 
I join Parts I and II [n1] of the Court's opinion, but I cannot subscribe to Part III in its full sweep. To the extent that it is there held that 18 U.S.C.  241 (1964 ed.) reaches conspiracies, embracing only the action of [p763] private persons, to obstruct or otherwise interfere with the right of citizens freely to engage in interstate travel, I am constrained to dissent. On the other hand, I agree that 241 does embrace state interference with such interstate travel, and I therefore consider that this aspect of the indictment is sustainable on the reasoning of Part II of the Court's opinion.
 
This right to travel must be found in the Constitution itself. This is so because 241 covers only conspiracies to interfere with any citizen in the "free exercise or enjoyment" of a right or privilege "secured to him by the Constitution or laws of the United States," and no "right to travel" can be found in 241 or in any other law of the United States. My disagreement with this phase of the Court's opinion lies in this: while past cases do indeed establish that there is a constitutional "right to travel" between States free from unreasonable governmental interference, today's decision is the first to hold that such movement is also protected against private interference, and, depending on the constitutional source of the right, I think it either unwise or impermissible so to read the Constitution.
 
Preliminarily, nothing in the Constitution expressly secures the right to travel. In contrast, the Articles of Confederation provided in Art. IV:
The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several States, and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively. . . [p764]
This right to "free ingress and regress" was eliminated from the draft of the Constitution without discussion even though the main objective of the Convention was to create a stronger union. It has been assumed that the clause was dropped because it was so obviously an essential part of our federal structure that it was necessarily subsumed under more general clauses of the Constitution. See United States v. Wheeler, 254 U.S. 281, 294. I propose to examine the several asserted constitutional bases for the right to travel, and the scope of its protection in relation to each source.
 
I
 
Because of the close proximity of the right of ingress and regress to the Privileges and Immunities Clause of the Articles of Confederation, it has long been declared that the right is a privilege and immunity of national citizenship under the Constitution. In the influential opinion of Mr. Justice Washington on circuit, Corfield v. Coryell, 4 Wash.C.C. 371 (1825), the court addressed itself to the question -- "what are the privileges and immunities of citizens in the several states?" Id. at 380. Corfield was concerned with a New Jersey statute restricting to state citizens the right to rake for oysters, a statute which the court upheld. In analyzing the Privileges and Immunities Clause of the Constitution, Art. IV, 2, the court stated that it confined "these expressions to those privileges and immunities which are, in their nature, fundamental," and listed among them
 
The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise. . . .
Id. at 380-381.
 
The dictum in Corfield was given general approval in the first opinion of this Court to deal directly with the right of free movement, Crandall v. Nevada, 6 Wall. 35, [p765] which struck down a Nevada statute taxing persons leaving the State. It is first noteworthy that, in his concurring opinion, Mr. Justice Clifford asserted that he would hold the statute void exclusively on commerce grounds, for he was clear "that the State legislature cannot impose any such burden upon commerce among the several States." 6 Wall. at 49. The majority opinion of Mr. Justice Miller, however, eschewed reliance on the Commerce Clause and the Import-Export Clause and looked rather to the nature of the federal union:
 
The people of these United States constitute one nation. . . . This government has necessarily a capital established by law. . . . That government has a right to call to this point any or all of its citizens to aid in its service. . . . The government, also, has its offices of secondary importance in all other parts of the country. On the sea-coasts and on the rivers, it has its ports of entry. In the interior, it has its land offices, its revenue offices, and its sub-treasuries. In all these, it demands the services of its citizens, and is entitled to bring them to those points from all quarters of the nation, and no power can exist in a State to obstruct this right that would not enable it to defeat the purposes for which the government was established.
 
6 Wall. at 43-44. Accompanying this need of the Federal Government, the Court found a correlative right of the citizen to move unimpeded throughout the land:
He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are [p766] conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.
 
6 Wall. at 44. The focus of that opinion, very clearly, was thus on impediments by the States on free movement by citizens. This is emphasized subsequently when Mr. Justice Miller asserts that this approach is "neither novel nor unsupported by authority," because it is, fundamentally, a question of the exercise of a State's taxing power to obstruct the functions of the Federal Government:
[T]he right of the States in this mode to impede or embarrass the constitutional operations of that government, or the rights which its citizens hold under it, has been uniformly denied.
6 Wall. at 44-45.
 
Later cases, alluding to privileges and immunities, have in dicta included the right to free movement. See Paul v. Virginia, 8 Wall. 168, 180; Williams v. Fears, 179 U.S. 270, 274; Twining v. New Jersey, 211 U.S. 78.
 
Although the right to travel thus has respectable precedent to support its status as a privilege and immunity of national citizenship, it is important to note that those cases all dealt with the right of travel simply as affected by oppressive state action. Only one prior case in this Court, United States v. Wheeler, 254 U.S. 281, was argued precisely in terms of a right to free movement, as against interference by private individuals. There, the Government alleged a conspiracy under the predecessor of 241 against the perpetrators of the notorious Bisbee Deportations. [n2] The case was argued straightforwardly in terms of whether the right to free ingress and [p767] egress, admitted by both parties to be a right of national citizenship, was constitutionally guaranteed against private conspiracies. The Brief for the Defendants in Error, whose counsel was Charles Evans Hughes, later Chief Justice of the United States, gives as one of its main points:
So far as there is a right pertaining to Federal citizenship to have free ingress or egress with respect to the several States, the right is essentially one of protection against the action of the States themselves and of those acting under their authority.
 
Brief, at p. i. The Court, with one dissent, accepted this interpretation of the right of unrestricted interstate movement, observing that Crandall v. Nevada, supra, was inapplicable because, inter alia, it dealt with state action. 254 U.S. at 299. More recent cases discussing or applying the right to interstate travel have always been in the context of oppressive state action. See, e.g., Edwards v. California, 314 U.S. 160, and other cases discussed infra. [n3]
 
It is accordingly apparent that the right to unimpeded interstate travel, regarded as a privilege and immunity of national citizenship, was historically seen as a method of breaking down state provincialism, and facilitating the creation of a true federal union. In the one case in which a private conspiracy to obstruct such movement was heretofore presented to this Court, the predecessor of the very statute we apply today was held not to encompass such a right.
 
II
 
A second possible constitutional basis for the right to move among the States without interference is the Commerce Clause. When Mr. Justice Washington articulated [p768] the right in Corfield, it was in the context of a state statute impeding economic activity by outsiders, and he cast his statement in economic terms. 4 Wash. C. C., at 380-381. The two concurring Justices in Crandall v. Nevada, supra, rested solely on the commerce argument, indicating again the close connection between freedom of commerce and travel as principles of our federal union. In Edwards v. California, 314 U.S. 160, the Court held squarely that the right to unimpeded movement of persons is guaranteed against oppressive state legislation by the Commerce Clause, and declared unconstitutional a California statute restricting the entry of indigents into that State.
 
Application of the Commerce Clause to this area has the advantage of supplying a longer tradition of case law and more refined principles of adjudication. States do have rights of taxation and quarantine, see Edwards v. California, 314 U.S. at 184 (concurring opinion), which must be weighed against the general right of free movement, and Commerce Clause adjudication has traditionally been the means of reconciling these interests. Yet this approach to the right to travel, like that found in the privileges and immunities cases, is concerned with the interrelation of state and federal power, not -- with an exception to be dealt with in a moment -- with private interference.
The case of In re Debs, 158 U.S. 564, may be thought to raise some doubts as to this proposition. There, the United States sought to enjoin Debs and members of his union from continuing to obstruct -- by means of a strike -- interstate commerce and the passage of the mails. The Court held that Congress and the Executive could certainly act to keep the channels of interstate commerce open, and that a court of equity had no less power to enjoin what amounted to a public nuisance. It might [p769] be argued that to the extent Debs permits the Federal Government to obtain an injunction against the private conspiracy alleged in the present indictment, [n4] the criminal statute should be applicable as well on the ground that the governmental interest in both cases is the same, namely to vindicate the underlying policy of the Commerce Clause. However, 241 is not directed toward the vindication of governmental interests; it requires a private right under federal law. No such right can be found in Debs, which stands simply for the proposition that the Commerce Clause gives the Federal Government standing to sue on a basis similar to that of private individuals under nuisance law. The substantive rights of private persons to enjoin such impediments, of course, devolve from state, not federal, law; any seemingly inconsistent discussion in Debs would appear substantially vitiated by Erie R. Co. v. Tompkins, 304 U.S. 64.
 
I cannot find in any of this past case law any solid support for a conclusion that the Commerce Clause embraces a right to be free from private interference. And the Court's opinion here makes no such suggestion.
 
III
 
One other possible source for the right to travel should be mentioned. Professor Chafee, in his thoughtful study, "Freedom of Movement," [n5] finds both the privileges and immunities approach and the Commerce Clause approach unsatisfactory. After a thorough review of the history [p770] and cases dealing with the question, he concludes that this "valuable human right," id. at 209, is best seen in due process terms:
 
Already, in several decisions, the Court has used the Due Process Clause to safeguard the right of the members of any race to reside where they please inside a state, regardless of ordinances and injunctions. Why is not this clause equally available to assure the right to live in any state one desires? And unreasonable restraints by the national government on mobility can be upset by the Due Process Clause in the Fifth Amendment. . . . Thus, the "liberty" of all human beings which cannot be taken away without due process of law includes liberty of speech, press, assembly, religion, and also liberty of movement.
Id. at 192-193.
 
This due process approach to the right to unimpeded movement has been endorsed by this Court. In Kent v. Dulles, 357 U.S. 116"]357 U.S. 116, the Court asserted that "The right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment," id. at 125, citing Crandall v. Nevada, supra, and Edwards v. California, supra. It is true that the holding in that case turned essentially on statutory grounds. However, in 357 U.S. 116, the Court asserted that "The right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment," id. at 125, citing Crandall v. Nevada, supra, and Edwards v. California, supra. It is true that the holding in that case turned essentially on statutory grounds. However, in Aptheker v. Secretary of State, 378 U.S. 500, the Court, applying this constitutional doctrine, struck down a federal statute forbidding members of Communist organizations to obtain passports. Both the majority and dissenting opinions affirmed the principle that the right to travel is an aspect of the liberty guaranteed by the Due Process Clause.
 
Viewing the right to travel in due process terms, of course, would clearly make it inapplicable to the present case, for due process speaks only to governmental action [p771 ]
 
IV
 
This survey of the various bases for rounding the "right to travel" is conclusive only to the extent of showing that there has never been an acknowledged constitutional right to be free from private interference, and that the right in question has traditionally been seen and applied, whatever the constitutional underpinning asserted, only against governmental impediments. The right involved being as nebulous as it is, however, it is necessary to consider it in terms of policy as well as precedent.
 
As a general proposition, it seems to me very dubious that the Constitution was intended to create certain rights of private individuals as against other private individuals. The Constitutional Convention was called to establish a nation, not to reform the common law. Even the Bill of Rights, designed to protect personal liberties, was directed at rights against governmental authority, not other individuals. It is true that there is a very narrow range of rights against individuals which have been read into the Constitution. In Ex parte Yarbrough, 110 U.S. 651, the Court held that implicit in the Constitution is the right of citizens to be free of private interference in federal elections. United States v. Classic, 313 U.S. 299, extended this coverage to primaries. Logan v. United States, 144 U.S. 263, applied the predecessor of 241 to a conspiracy to injure someone in the custody of a United States marshal; the case has been read as dealing with a privilege and immunity of citizenship, but it would seem to have depended as well on extrapolations from statutory provisions providing for supervision of prisoners. The Court in In re Quarles, 158 U.S. 532, extending Logan, supra, declared that there was a right of federal citizenship to inform federal officials of violations of federal law. See also United [p772] States v. Cruikshank, 92 U.S. 542, 552, which announced in dicta a federal right to assemble to petition the Congress for a redress of grievances.
 
Whatever the validity of these cases on their own terms, they are hardly persuasive authorities for adding to the collection of privileges and immunities the right to be free of private impediments to travel. The cases just discussed are narrow, and are essentially concerned with the vindication of important relationships with the Federal Government voting in federal elections, involvement in federal law enforcement, communicating with the Federal Government. The present case stands on a considerably different footing.
 
It is arguable that the same considerations which led the Court on numerous occasions to find a right of free movement against oppressive state action now justify a similar result with respect to private impediments. Crandall v. Nevada, supra, spoke of the need to travel to the capital, to serve and consult with the offices of government. A basic reason for the formation of this Nation was to facilitate commercial intercourse; intellectual, cultural, scientific, social, and political interests are likewise served by free movement. Surely these interests can be impeded by private vigilantes as well as by state action. Although this argument is not without force, I do not think it is particularly persuasive. There is a difference in power between States and private groups so great that analogies between the two tend to be misleading. If the State obstructs free intercourse of goods, people, or ideas, the bonds of the union are threatened; if a private group effectively stops such communication, there is, at most, a temporary breakdown of law and order, to be remedied by the exercise of state authority or by appropriate federal legislation.
 
To decline to find a constitutional right of the nature asserted here does not render the Federal Government [p773] helpless. As to interstate commerce by railroads, federal law already provides remedies for "undue or unreasonable prejudice," 24 Stat. 380, as amended,49  U.S.C.  3(1) (1964 ed.), which has been held to apply to racial discrimination. Henderson v. United States, 339 U.S. 816.
 
A similar statute applies to motor carriers, 49 Stat. 558, as amended, 49 U.S.C. 316(d) (1964 ed.), and to air carriers, 72 Stat. 760, 49 U.S.C. 1374(b) (1964 ed.). See Boynton v. Virginia, 364 U.S.  454; Fitzgerald v. Pan American World Airways, 229 F.2d 499. The Civil Rights Act of 1964, 78 Stat. 243, deals with other types of obstructions to interstate commerce. Indeed, under the Court's present holding, it is arguable that any conspiracy to discriminate in public accommodations having the effect of impeding interstate commerce could be reached under 241, unaided by Title II of the Civil Rights Act of 1964. Because Congress has wide authority to legislate in this area, it seems unnecessary -- if prudential grounds are of any relevance, see Baker v. Carr, 369 U.S.  186, 258-259 (CLARK, J., concurring) -- to strain to find a dubious constitutional right.
 
V
 
If I have succeeded in showing anything in this constitutional exercise, it is that, until today, there was no federal right to be free from private interference with interstate transit, and very little reason for creating one. Although the Court has ostensibly only "discovered" this private right in the Constitution and then applied 241 mechanically to punish those who conspire to threaten it, it should be recognized that what the Court has in effect done is to use this all-encompassing criminal statute to fashion federal common law crimes, forbidden to the federal judiciary since the 1812 decision in United States v. Hudson, 7 Cranch 32. My Brother DOUGLAS, dissenting in United States v. Classic, supra, [p774] noted well the dangers of the indiscriminate application of the predecessor of 241:
It is not enough for us to find in the vague penumbra of a statute some offense about which Congress could have legislated, and then to particularize it as a crime because it is highly offensive.
313 U.S. at 331-332.
 
I do not gainsay that the immunities and commerce provisions of the Constitution leave the way open for the finding of this "private" constitutional right, since they do not speak solely in terms of governmental action. Nevertheless, I think it wrong to sustain a criminal indictment on such an uncertain ground. To do so subjects 241 to serious challenge on the score of vagueness, and serves in effect to place this Court in the position of making criminal law under the name of constitutional interpretation. It is difficult to subdue misgivings about the potentialities of this decision.
 
I would sustain this aspect of the indictment only on the premise that it sufficiently alleges state interference with interstate travel, and on no other ground.
1. The action of three of the Justices who join the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary.
2. For a discussion of the deportations, see The President's Mediation Comm'n, Report on the Bisbee Deportations (November 6, 1917).
3. The Court's reliance on United States v. Moore, 129 F. 630, is misplaced. That case held only that it was not a privilege or immunity to organize labor unions. The reference to "the right to pass from one state to any other" was purely incidental dictum.
4. It is not even clear that an equity court would enjoin a conspiracy of the kind alleged here, for traditionally equity will not enjoin a crime. See Developments in the Law -- Injunctions, 78 Harv.L.Rev. 994, 1013-1018 (1965).
5. In Three Human Rights in the Constitution of 1787, at 162 (1956).

 


Cases My Right of Defense Against Unlawful Arrest
MY RIGHT OF DEFENSE AGAINST
UNLAWFUL ARREST
LAWFUL CONSTRUCTIVE NOTICE
 
"Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary." Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated:
 
"Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed."
 
"An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. if the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter." Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.
"When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified." Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.
 
"These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence." Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.
"An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery." (State v. Robinson, 145 ME. 77, 72 ATL. 260).
 
"Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense." (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).
 
"One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance." (Adams v. State, 121 Ga. 16, 48 S.E. 910).

"Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that 'a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.' There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, 'If there be any remedy at all ... it is a remedy never provided for by human institutions.' That was the `ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.'" (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: "The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace." (Wharton's Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

 

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