264
Opinion of the Court
II
Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) "willfully" and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States.1 18 U. S. C. § 242; Screws v. United States, supra. The en banc decision of the Sixth Circuit dealt only with the last of these elements, and it is with that element alone that we are concerned here.2
The general language of § 242,3 referring to "the deprivation of any rights, privileges, or immunities secured or pro-1 The present § 242 has its roots in portions of three Reconstruction Era Civil Rights Acts, whose substantive criminal provisions were consolidated in a single section in 1874. See 2 Cong. Rec. 827-828 (1874) (describing derivation of consolidated criminal civil rights law from §§ 1 and 2 of the Civil Rights Act of 1866, 14 Stat. 27; §§ 16 and 17 of the Civil Rights Act of 1870, 16 Stat. 144; and § 1 of the Civil Rights Act of 1871, 17 Stat. 13). Although those statutory forebears created criminal sanctions only for violations of some enumerated rights and privileges, the consolidated statute of 1874 expanded the law's scope to apply to deprivations of all constitutional rights, despite the "customary stout assertions of the codifiers that they had merely clarified and reorganized without changing substance." United States v. Price, 383 U. S. 787, 803 (1966). Since the 1874 recodification, Congress has revisited § 242 on several occasions, without contracting its substantive scope. See 35 Stat. 1092 (1909) (adding willfulness requirement); 82 Stat. 75 (1968) (enhancing penalties for some violations); 102 Stat. 4396 (1988) (same); 108 Stat. 1970, 2109, 2113, 2147 (1994) (same).
2 Thus, we do not address the argument, pressed by respondent, that the actions for which he was convicted were not taken under color of law. The Sixth Circuit discussed that issue only in the original panel opinion, subsequently vacated, but did not reach the question in the en banc decision under review here. To the extent the issue remains open, we leave its consideration in the first instance to the Court of Appeals on remand.
3 "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens," shall be subject to specified criminal penalties.
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