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Opinion of the Court
drew this concession on reargument. Without a race- or class-based animus requirement, the "hindrance" clause of this post-Civil War statute would have been an available weapon against the mass "sit-ins" that were conducted for purposes of promoting desegregation in the 1960's—a wildly improbable result.14
Even, moreover, if the "hindrance"-clause claim did not fail for lack of class-based animus, it would still fail unless the "hindrance" clause applies to a private conspiracy aimed at
14 Justice Souter contends the sit-in example is inapposite because the sit-ins did not "depriv[e] the owners of the segregated lunch counter[s] of any independently protected constitutional right." Post, at 305, n. 10. In the very paragraph to which that footnote is appended, however, Justice Souter purports to leave open the question whether the "hindrance" clause would apply when the conspiracy "amount[s] to a denial of police protection to individuals who are not attempting to exercise a constitutional right," post, at 304, n. 9—such as (presumably) the rights guaranteed by state trespass laws. Certainly the sit-ins violated such state-law rights, or else there would have been no convictions. It is not true, in any case, that the sit-ins did not invade constitutional rights, if one uses that term (as Justice Souter does) to include rights constitutionally protected only against official (as opposed to private) encroachment. Surely property owners have a constitutional right not to have government physically occupy their property without due process and without just compensation.
Justice Souter's citation of Roberts v. United States Jaycees, 468 U. S. 609 (1984), post, at 305, n. 10, and Lane v. Cotton, 12 Mod. 472 (K. B. 1701), post, at 305, n. 10, requires no response. He cites Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964), for the proposition that the 1964 Civil Rights Act's elimination of restaurant-owners' right to exclude blacks from their establishments did not violate the Due Process or Takings Clauses. Assuredly not. But government regulation of commercial use through valid legislation is hardly comparable to government action that would have been the equivalent of what those conducting the sit-ins did: physically occupy private property, against the consent of the owner, without legal warrant. Justice Souter cites Shelley v. Kraemer, 334 U. S. 1 (1948), post, at 306, n. 10, to establish (in effect) that there was, even before the Civil Rights Act, legal warrant for the physical occupation. Any argument driven to reliance upon an extension of that volatile case is obviously in serious trouble.
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