Digital History>eXplorations>Lynching>Anti-Lynching Legislation of the 1920s>General Daughtery's Letter to A.J. Volstead

Attorney General H. M. Daughtery's Letter to A. J. Volstead August 9, 1921

Source: NAACP Papers, Library of Congress

While under the statutes governing my office I am not authorized to give an official opinion to your committee relative to the bill, my interest in securing to persons within the jurisdiction of every State the equal protection of the laws, especially with reference to lynching, is so great that I feel warranted in submitting to you as my personal and not official opinion certain thoughts which have occurred to me as the result of a somewhat hasty examination of the bill.

As pointed out by Col. Goff in his statement before your committee, the first seven sections, providing for the removal of cases under certain conditions to the Federal courts, and providing for the punishment of persons obstructing or resisting officers of the United States, are in effect but elaborations of existing law. They appear to be well drafted and within the competency of Congress to enact. Considerable discussion has taken place as to the constitutionality of the proposed legislation, it being contended that the fourteenth amendment gave Congress power to legislate so as to prevent a denial of the equal protection of the laws by the States and not as acts of individuals not clothed with State authority. In support of this proposition the following cases have been cited: United States v. Cruikshank (92 U. S., 542); Virginia v. Rives (100 U. S., 313); Ex Parte Virginia (100 U. S., 339); Civil Rights Cases (109 U. S., 3); United States v. Harris (203 U. S., 1); James v. Bowman (190 U. S., 127); Hodges v. United States (203 U. S., 1); United States v. Wheeler (245 U. S., 281). Col. Goff has very thoroughly gone over this question in his statement before your committee, and I heartily concur in the views he there expressed. It will be observed that in the cases above cited the court hold that the state may act through its legislative, its judicial, or its executive authorities, and the act of any one of these is the act of the State. This is concisely set forth in the opinion of the court in Ex Parte Virginia (100 U. S., 339, at 346).

…Section 10 imposes a penalty upon every county in which an unlawful killing occurs, and section 11 imposes a like penalty on every county through which the victim may be carried before being put to death. While the question whether the United States may penalize and instrumentality of a subdivision of a State may cause some doubt, it is at least an open one so far as the decisions of the Supreme Court are concerned. There has been conferred on Congress the power by appropriate legislation to enforce the prohibitions of the fourteenth amendment and the imposition of penalties is a well-established means of enforcing the laws, and is so recognized by numerous decisions of all courts and is no doubt an appropriate method of so enforcing the law.

This being true and the States having consented by their adoption of the provisions of the Constitution and its amendments to such enforcement of the law by the Federal Government, it would seem there could be but little question of the power of Congress to provide such penalties. Section 12 and section 13 provide for the punishment of State and municipal officers who fail in their duty to prevent lynchings or who suffer persons accused of crime to be taken from their custody for the purpose of lynching. These sections seem to me to strike at the heart of the evil, namely, the failure of State officers to perform their duty in such cases. The fourteenth amendment recognizes as pre-existing the right to due process of law and to the equal protection of the law and guarantees against State infringement of those rights. A State officer charged with the protection of those rights who fails or refuses to do all in his power to protect the accused person against mob action denies to such person due process of law and the equal protection of the laws in every sense of the term. The right of Congress to do this is fully sustained by the decision of the court in Ex Parte Virginia, supra. (See pp. 346, 347.)

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