SECTION 5 OF THE FOURTEENTH AMENDMENT ALLOWS CONGRESS TO PROVIDE A REMEDY FOR CONDUCT BY PRIVATE PARTIES WHICH DEPRIVES CITIZENS OF FOURTEENTH AMENDMENT RIGHTS: Congress was faced with the situation in which classes of citizens were systematically deprived of their rights under state law by private individuals, and the states were not protecting their citizens against these violations. As Representative Coburn emphasized, the governors of eight states had invoked the aid of the federal government to repress the Klan between 1868 and 1870. He stated:[T]here is a preconcerted and no effective plan by which thousands of men are deprived of the equal protection of the laws. The arresting power is fettered, the witnesses are silenced, the courts are impotent, the laws are annulled, the criminal goes free, the persecuted citizen looks in vain for redress. This condition of affairs extends to counties and States; it is, in many places, the rule, and not the exception. To the majority in Congress, the failure or neglect of a state to enforce its laws on behalf of classes of its citizens amounted to a denial of equal protection of the laws. As Representative Garfield commented:[I]t appears that in some of the southern States, there exists a widespread secret organization whose members are bound together by solemn oaths to prevent certain classes of citizens of the United States from enjoying these new rights conferred upon them by the Constitution and laws; that they are putting into execution their design of preventing such citizens from enjoying the free right of the ballot box and other privileges and immunities of citizens, and from enjoying the equal protection of the laws.… [T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them…The legislators recognized that the constitutional guarantee of equal protection of the laws was an assurance not only against the passage of discriminatory laws, but also against the inequitable enforcement of facially neutral statutes. Congress believed that this unequal application of state law caused by private individuals tampering with the states’ enforcement mechanisms justified remedial legislation. Otherwise, the guarantees of the fourteenth amendment would be ineffectual, as Representative Wilson maintained: A refusal to legislate equally for the protection of all would unquestionably be a denial [of equal protection]. This conceded, upon what ground can it be pretended that a refusal to execute, or a failure to do so, through inability, equally with reference to all persons, is not also a denial? I maintain, therefore, that the true meaning of this constitutional provision is that the State shall afford equal protection to all persons within its jurisdiction. Failing to do this, whether that failure is the result of inaction or inability on the part of the one or the other of the coordinate branches of the State government, the remedy lies with Congress …. Whenever it appears that any State has failed to discharge this high constitutional obligation to all of its citizens, it is not only within the power, but it is the solemn duty of Congress to enforce the protection which the State withholds-California Law Review

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