Palmer v. Thompson/Dissent Douglas

by William O. Douglas

United States Supreme Court

403 U.S. 217

Palmer  v.  Thompson

 Argued: Dec. 14, 1970. --- Decided: June 14, 1971

Mr. Justice DOUGLAS, dissenting.

Jackson, Mississippi, closed all the swimming pools. 206 F.Supp. 539. it, following a judgment of the Court of Appeals in Clark v. Thompson, 5 Cir., 313 F.2d 637, which affirmed the District Court's grant of a declaratory judgment that three Negroes were entitled to the desegregated use of the city's swimming pools. 206 F.Supp. 539, 542. No municipal swimming facilities have been opened to any citizen of either race since that time; and the city apparently does not intend to reopen the pools on an integrated basis.

That program is not, however, permissible if it denies rights created or protected by the Constitution. Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149. I think that the plan has that constitutional defect; and that is the burden of this dissent.

Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616; Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830, and Griffin v. County School Board, etc., 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256, do not precisely control the present case. They are different because there state action perpetuated on-going regimes of racial discrimination in which the State was implicated.

In Griffin, the State closed public schools in one county only, not in the others, and meanwhile contributed to the support of private segregated white schools. 377 U.S., at 232, 84 S.Ct., at 1233. That, of course, was a continuation of segregation in another form. In Hunter a city passed a housing law which provided that before an ordinance regulating the sale or lease of realty on the basis of race could become effective it had to be approved by a majority vote. Thus the protection of minority interests became much more difficult. ^[1] We held that a state agency could not in its voting scheme so disadvantage Negro interests. In Reitman the State repealed legislation prohibiting racial discrimination in housing, thus encouraging racial discrimination in the housing market. 387 U.S., at 376, 87 S.Ct., at 1631.

Whether, in the closing of all municipal swimming pools in Jackson, Mississippi, any artifices and devices were employed as in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, to make the appearance not conform to the reality, is not shown by this record. Under Burton, if the State has a continuing connection with a swimming pool, it becomes a public facility and the State is under obligation to see that the operators meet all Fourteenth Amendment responsibilities. 365 U.S., at 725, 81 S.Ct., at 861. We may not reverse under Burton because we do not know what the relevant facts are.

Closer in point is Bush v. Orleans Parish School Board, D.C., 187 F.Supp. 42, aff'd, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806. Louisisiana, as part of her strategy to avoid a desegregated public school system, authorized the Governor to close any public school ordered to be integrated. The three-judge District Court relying on Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5, held that the Act was unconstitutional and enjoined the Governor from enforcing it. The District Court decision was so clearly correct that we wrote no opinion when we affirmed the three-judge court. While there were other Louisiana laws also held unconstitutional as perpetuating a state segregated school system, the one giving the Governor the right to close any public school ordered integrated seems indistinguishable from this one.

May a State in order to avoid integration of the races abolish all of its public schools? That would dedicate the State to backwardness, ignorance, and existence in a new Dark Age. Yet is there anything in the Constitution that says that a State must have a public school system? Could a federal court enjoin the dismantling of a public school system? Could a federal court order a city to levy the taxes necessary to construct a public school system? Such supervision over municipal affairs by federal courts would be a vast undertaking, conceivably encompassing schools, parks, playgrounds, civic auditoriums, tennis courts, athletic fields, as well as swimming pools.

My conclusion is that the Ninth Amendment has a bearing on the present problem. It provides:

'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'

Rights, not explicitly mentioned in the Constitution, have at times been deemed so elementary to our way of life that they have been labeled as basic rights. Such is the right to travel from State to State. United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239. Such is also the right to marry. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010. The 'rights' retained by the people within the meaning of the Ninth Amendment may be related to those 'rights' which are enumerated in the Constitution. Thus the Fourth Amendment speaks of the 'right of the people to be secure in their persons, houses, papers, and effects' and protects it by well-known procedural devices. But we have held that that enumerated 'right' also has other facets commonly summarized in the concept of privacy. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.

There is, of course, not a word in the Constitution, unlike many modern constitutions, concerning the right of the people to education or to work or to recreation by swimming or otherwise. Those rights, like the right to pure air and pure water, may well be rights 'retained by the people' under the Ninth Amendment. May the people vote them down as well as up?

A State may not, of course, interfere with interstate commerce; and to the extent that public services are rendered by interstate agencies the State by reason of the Supremacy Clause is powerless to escape. The right to vote is a civil right guaranteed by the Constitution as we recently re-emphasized in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272. In Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430, the State required designation on the ballots of every candidate's race. We said:

'In the abstract, Louisiana imposes no restriction upon anyone's candidacy nor upon an elector's choice in the casting of his ballot. But by placing a racial label on a candidate at the most crucial stage in the electoral process the instant before the vote is cast-the State furnishes a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another. This is true because by directing the citizen's attention to the single consideration of race or color, the State indicates that a candidate's race or color is an important perhaps paramount-consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot along racial lines.' 375 U.S., at 402, 84 S.Ct., at 456.

A constitutional right cannot be so burdened. We stated in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, that: 'One's right to life, liberty, and property * * * and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.' And we added in Lucas v. Forty-Fourth Colorado General Assembly, 377 U.S. 713, 736-737, 84 S.Ct. 1459, 1474, 12 L.Ed.2d 632 'A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that (they) be.' Thus the right of privacy, which we honored in Griswold, may not be overturned by a majority vote at the polls, short of a constitutional amendment.

In determining what municipal services may not be abolished the Court of Appeals drew the line between 'an essential public function' and other public functions. Whether state constitutions draw that line is not our concern. Certainly there are no federal constitutional provisions which make that distinction.

Closing of the pools probably works a greater hardship on the poor than on the rich; and it may work greater hardship on poor Negroes than on poor whites, a matter on which we have no light. Closing of the pools was at least in part racially motivated. And, as stated by the dissenters in the Court of Appeals:

'The closing of the City's pools has done more than deprive a few thousand Negroes of the pleasures of swimming. It has taught Jackson's Negroes a lesson: In Jackson the price of protest is high. Negroes there now know that they risk losing even segregated public facilities if they dare to protest segregation. Negroes will now think twice before protesting segregated public parks, segregated public libraries, or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether, and at the same time engendering further animosity from a white community which has lost its public facilities also through the Negroes' attempts to desegregate these facilities.

'The long-range effects are manifold and far-reaching. If the City's pools may be eliminated from the public domain, parks, athletic activities, and libraries also may be closed. No one can say how many other cities may also close their pools or other public facilities. The City's action tends to separate the races, encourage private discrimination, and raise substantial obstacles for Negroes asserting the rights of national citizenship created by the Wartime Amendments.' 419 F.2d 1222, 1236.

That view has strong footing in our decisions. 'The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.' Loving v. Virginia, 388 U.S., at 10, 87 S.Ct. at 1823. Cf. McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222. When the effect is 'to chill the assertion of constitutional rights by penalizing those who choose to exercise them' (United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138) that state action is 'patently unconstitutional.'

While Chief Justice Marshall intimated in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that the motives which dominate or influence legislators in enacting laws are not fit for judicial inquiry, we do look closely at the thrust of a law to determine whether in purpose or effect there was an invasion of constitutional rights. See Epperson v. Arkansas, 393 U.S. 97, 109, 89 S.Ct. 266, 273, 21 L.Ed.2d 228; Griffin v. County School Board of Prince Edward County, 377 U.S., at 231, 84 S.Ct., at 1233. A candidate may be defeated because the voters are bigots. A racial issue may inflame a community causing it to vote a humane measure down. The federal judiciary cannot become involved in those kinds of controversies. The question for the federal judiciary is not what the motive was, put what the consequences are.

In Reitman an active housing program had been racially dominated and then controlled by a state law ending discrimination. But in time the State reversed its policy and lifted the anti-discrimination controls. Thus it launched or at least tolerated a regime of racially discriminatory housing.

It is earnestly argued that the same result obtains here because the regime of desegregated swimming decreed by the District Court is ended and is supplanted by state-inspired, state-favored private swimming pools by clubs and others which perpetuate segregation.

We are told that the history of this episode shows the 'steel-hard, inflexible, undeviating official policy of segregation' in Mississippi. United States v. City of Jackson, 5 Cir., 318 F.2d 1, 5.

I believe that freedom from discrimination based on race, creed, or color has become by reason of the Thirteenth, Fourteenth, and Fifteenth Amendments one of the 'enumerated rights' under the Ninth Amendment that may not be voted up or voted down.

Much has been written concerning the Ninth Amendment including the suggestion that the rights there secured include 'rights of natural endowment.' ^[2] B. Patterson, The Forgotten Ninth Amendment 53 (1955).

Mr. Justice Goldberg, concurring in Griswold v. Connecticut, supra, 381 U.S., at 492, 85 S.Ct., at 1686, said:

'(T)he Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.' ^[3]

We need not reach that premise in this case. We deal here with analogies to rights secured by the Bill of Rights or by the Constitution itself. Franklin, The Ninth Amendment as Civil Law Method and its Implications for Republican Form of Government, 40 Tulane L.Rev. 487, 490-492 (1966); Redlich, Are There 'Certain Rights * * * Retained by the People?', 37 N.Y.U.L.Rev. 787, 810 812 (1962); Black, The Unfinished Business of the Warren Court, 46 Wash.L.Rev. 3, 37-45 (1970); Kutner, The Neglected Ninth Amendment: The 'Other Rights' Retained by the People, 51 Marq.L.Rev. 121, 134-137 (1968).

'The Fourteenth Amendment and the two escorting amendments establish a principle of absolute equality, an equality which is denied by racial separation or segregation because the separation in truth consecrates a hierarchy of racial relations, and hence permits inequality.' ^[4]

'(T)o the extent that the municipality had voluntarily undertaken to provide swimming facilities for its citizens, making it unnecessary for the private sector to develop equally adequate facilities, the closing of the pools has insured that racial segregation will be perpetuated.' Our cases condemn the creation of state laws and regulations which foster racial discrimination-segregated schools, segregated parks, and the like. The present case, to be sure, is only an analogy. The State enacts no law saying that the races may not swim together. Yet it eliminates all its swimming pools so that the races will not have the opportunity to swim together. While racially motivated state action is involved, it is of an entirely negative character. Yet it is in the penumbra ^[5] of the policies of the Thirteenth, Fourteenth, and Fifteenth Amendments and as a matter of constitutional policy should be in the category of those enumerated rights protected by the Ninth Amendment. If not included, those rights become narrow legalistic concepts which turn on the formalism of laws, not on their spirit.

I conclude that though a State may discontinue any of its municipal services-such as schools, parks, pools, athletic fields, and the like-it may not do so for the purpose of perpetuating or installing apartheid or because it finds life in a multi-racial community difficult or unpleasant. If that is its reason, then abolition of a designated public service becomes a device for perpetuating a segregated way of life. That a State may not do.

As Mr. Justice Brennan said in Evans v. Abney, 396 U.S. 435, 453, 90 S.Ct. 628, 638, 24 L.Ed.2d 634 (dissenting), where a State abandoned a park to avoid integration:

'I have no doubt that a public park may constitutionally be closed down because it is too expensive to run or has become superfluous, or for some other reason, strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility.' Hunter and Reitman went to the verge of that problem. Bush went the whole way. We should reaffirm what our summary affirmance of Bush plainly implied.

Notes

1. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678, undertook to distinguish Hunter on the ground that the California referendum on low-rent housing which submitted the issue to majority vote was 'neutral on its face' and not 'aimed at a racial minority.' The regime of Hunter, therefore, remains undisturbed. Yet there was no answer to the claim that a referendum solely for housing for the poor violates the Equal Protection Clause. However that may be, in the instant case the target was not the poor, but a racial minority.
2. And see Comment, Ninth Amendment Vindication of Unenumerated Fundamental Rights, 42 Temple L.Q. 46, 53-56 (1968); Bertelsman, The Ninth Amendment and Due Process of Law-Toward a Viable Theory of Unenumerated Rights, 37 U.Cin.L.Rev. 777, 787 et seq. (1968); Forkosch, Does 'Secure the Blessings of Liberty' Mandate Governmental Action?, 1 Ariz.St.L.J. 17, 32 (1970).
3. 'Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment-and indeed the entire Bill of Rights-originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.' 381 U.S., at 493, 85 S.Ct., at 381.
4. Franklin, The Relation of the Fifth, Ninth and Fourteenth Amendments to the Third Constitution, 4 How.L.J. 170, 180 (1958).
5. While the Equal Protection Clause protects individuals against state action, 'the involvement of the State' need not be 'either exclusive or direct.' United States v. Guest, 383 U.S. 745, 755, 86 S.Ct. 1170, 1176, 16 L.Ed.2d 239. 'In a variety of situations the Court has found state action of a nature sufficient to create rights under the Equal Protection Clause even though the participation of the State was peripheral, or its action was only one of several co-operative forces leading to the constitutional violation.' Id., at 755-756, 86 S.Ct., at 1177.