Cite as: 529 U. S. 598 (2000)
Opinion of the Court
were wrongly decided, and that Congress could under § 5 prohibit actions by private individuals. 383 U. S., at 774 (opinion concurring in part and dissenting in part). Three other Members of the Court, who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three sentences stated the conclusion that Congress could "punis[h] all conspiracies—with or without state action—that interfere with Fourteenth Amendment rights." Id., at 762 (concurring opinion). Justice Harlan, in another separate opinion, commented with respect to the statement by these Justices:
"The action of three of the Justices who joined the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary." Id., at 762, n. 1 (opinion concurring in part and dissenting in part).
Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no occasion to revisit the Civil Rights Cases and Harris, having determined "the indictment [charging private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contain[ed] an express allegation of state involvement." 383 U. S., at 756. The Court concluded that the implicit allegation of "active connivance by agents of the State" eliminated any need to decide "the threshold level that state action must attain in order to create rights under the Equal Protection Clause." Ibid. All of this Justice Clark explicitly acknowledged. See id., at 762 (concurring opinion) ("The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities").
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