Mr. Justice Harlan, dissenting.
The Court holds that these state trespass convictions, occurring before the passage of the Civil Rights Act of 1964, must be set aside by virtue of the federal doctrine of criminal abatement. This remarkable conclusion finds no support in reason or authority.
The common-law rule of abatement is basically a canon of construction conceived by the courts as a yardstick for determining whether a legislature, which has enacted a statute making conduct noncriminal which was proscribed by an earlier criminal statute, also intended to put an end to nonfinal convictions under the former legislation. In effect, the doctrine of abatement establishes a presumption that such was the purpose of the legislature in the absence of a demonstrated contrary intent, as evidenced, for example, in the case of congressional enactments by the federal saving statute,[1] see United States v. [p323] Reisinger, 128 U.S. 398. As was said in United States v. Tynen, 11 Wall. 88, 95:
"By the repeal of the 13th section of the act of 1813 all criminal proceedings taken under it fell. There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offence be at the time in existence. By the repeal the legislative will is expressed that no further proceedings be had under the act repealed."
The doctrine has its origins in the English common law, see, e.g., Rex v. Cator, 4 Burr. 2026, 98 Eng. Rep. 56; King v. Davis, 1 Leach Crown Cases 306 (3d ed), 168 Eng. Rep. 238, and has been embraced in American state and federal jurisprudence.
The abatement doctrine serves a useful and appropriate purpose in a framework of the legislation of a single political sovereignty. The doctrine strikes a jarring note, however, when it is applied so as to affect the legislation of a different sovereignty, as the federal doctrine is now used to abate these state convictions. Our federal system tolerates wide differences between state and federal legislative policies,[2] and the presumption of retroactive excul- [p324] pation that readily attaches to a federal criminal statute which unreservedly repeals earlier federal legislation cannot, in my opinion, be automatically thought to embrace exoneration from earlier wrongdoing under a state statute.[3]
I know of no case which suggests that the doctrine of abatement can be applied to affect the existing legislation of another jurisdiction. Until today the doctrine has always been applied only with respect to legislation of the same sovereignty, e.g., Rex v. Cator, supra; King v. Davis, supra; United States v. Tynen, supra; Yeaton v. United States, 5 Cranch 281. And all of the cases relied on by the Court are of that character.
The Supremacy Clause cannot serve as a vehicle for extending the federal doctrine of abatement beyond proper bounds. That provision of the Constitution would come into play only if it appeared from the Civil Rights Act itself or from its legislative history and setting that Congress" purpose was to displace past as well as prospective applications of state laws touching upon the matters with which the federal statute is concerned. For me, this would have to be made to appear in unmistakable terms, for such a purpose would represent an exercise of federal legislative power wholly unprecedented in our history.
I entirely agree with my Brother Black's poignant observations on this score; there is not a scintilla of evidence which remotely suggests that Congress had any such revoluntionary course in mind. Section 1104 of the Civil Rights Act indeed provides that nothing in the statute is to be "construed as invalidating any provision of State law unless . . . inconsistent with any of the pur- [p325] poses of this Act, or any provision thereof." Whether or not state trespass laws as applied to "racial trespasses" occurring after the effective date of the Civil Rights Act are to be deemed inconsistent with the provisions of § 203(c) of the Act,[4] a question which I find unnecessary to decide at this juncture, there is certainly no such plain inconsistency between § 203(c) and state trespass laws as applied in those situations arising before the passage of the Civil Rights Act as would justify this Court's attributing to Congress a purpose to pre-empt state law in such instances.
Moreover, the contrary conclusion would confront us with constitutional questions of the gravest import, for the legislative record is barren of any evidence showing that giving effect to past state trespass convictions would result in placing any burden on present interstate commerce.[5] Such evidence, at the very least, would be a prerequisite to the validity of any purported exercise of the Commerce power in this regard. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241; Katzenbach v. McClung, 379 U.S. 294. There is, indeed, nothing to indicate that Congress even adverted to such a question.
Finally, the Court's decision cannot be justified under the rule of avoidance of constitutional questions, see Court's opinion, ante, p. 316. That rule does not reach to the extent of enabling this Court to fabricate nonconstitutional grounds of decision out of whole cloth.
"'A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' United States v. Jin Fuey Moy, supra [241 U.S. 394, 401]. But avoidance of a difficulty will not [p326] be pressed to the point of disingenuous evasion." Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (Cardozo, J.).[6]
Concluding that these trespass convictions are not abated, I would affirm the judgments in both of these cases for the reasons given by Mr. Justice Black in his dissenting opinion in Bell v. Maryland, 378 U.S. 226, 318, in which I joined.
- ↑ 1 U.S.C. § 109 (1958 ed.): "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 expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any [p323] proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." I accept the Court's conclusion that this section has no application here, but only because there has been no repeal or amendment of an existing federal statute.
- ↑ Arkansas, for example, has a saving clause, Ark. Stat. Ann. §§ 1-103, 1-104, similar to 1 U.S.C. § 109, which expresses a state policy to save the conviction of Lupper. See Mack v. Connor, 220 Ga. 450, 139 S.E.2d 286 (Ga. Sup. Ct. 1964). Cf. Bell v. Maryland, 378 U.S. 226, conviction affirmed on remand, 236 Md. 356, 204 A.2d 54; rehearing granted and argument deferred "awaiting the outcome of similar issues now pending before the United States Supreme Court," quite obviously referring to these cases.
- ↑ See Cohens v. Virginia, 6 Wheat. 264, 443, quoted in my Brother Black's opinion, ante, p. 321.
- ↑ Quoted in the Court's opinion, ante, pp. 310–311.
- ↑ No attempt is made by the Court to justify the retroactive application of the Civil Rights Act under the Fourteenth Amendment.
- ↑ See also International Association of Machinists v. Street, 367 U.S. 740, 797 (Frankfurter, J., dissenting).