dissenting.
Three law enforcement officers of Georgia, a county sheriff, a special deputy and a city policeman, arrested a young Negro charged with a local crime, that of stealing a tire. While he was in their custody and handcuffed, they so severely beat the lad that he died. This brutal misconduct rendered these lawless law officers guilty of manslaughter, if not of murder, under Georgia law.. Instead of leaving this misdeed to vindication by Georgia law, the United States deflected Georgia’s responsibility by instituting a federal prosecution. But this was a criminal homicide' only under Georgia law. The United States could not prosecute the petitioners for taking life. In*139stead a prosecution was brought, and the conviction now under review was obtained, under § 20 of the Criminal Code, 18 U. S. C. § 52. Section 20, originating in § 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, was put on the statute books on May 31, 1870, but for all practical purposes it has remained a dead letter all these years. This section provides that “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects . . . any inhabitant of any State ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States . . . shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both.” Under § 37 of the Criminal Code, 18 U. S. C. § 88, a conspiracy to commit any federal offense is punishable by imprisonment for two years. The theory of this prosecution is that one charged with crime is entitled to due process of law and that that includes the right to an orderly trial of which the petitioners deprived the Negro.
Of course the petitioners are punishable. The only issue is whether Georgia alone has the power and duty to punish, or whether this patently local crime can be made the basis of a federal prosecution. The practical question is whether the States should be relieved from responsibility to bring their law officers to book for homicide, by allowing prosecutions in the federal courts for a relatively minor offense carrying a short sentence. The legal question is whether, for the purpose of accomplishing this relaxation of State responsibility, hitherto settled principles for the protection of civil liberties shall be bent and tortured.
I
By the Thirteenth Amendment slavery was abolished. In order to secure equality of treatment for the emancipated, the Fourteenth Amendment was adopted at the *140same time. To be sure, the latter Amendment has not been confined to instances of discrimination because of race or color. Undoubtedly, however, the necessary protection of the new freedmen was the most powerful impulse behind the Fourteenth Amendment. The vital part of that Amendment, § 1, reads as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens 'of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
By itself, this Amendment is merely an instrument for striking down action by the States in defiance of it. It does not create rights and obligations actively enforceable by federal law. However, like all rights secured by the Constitution of the United States, those created by the Fourteenth Amendment could be enforced by appropriate federal legislation. The general power of Congress to pass measures effectuating the Constitution is given by Art. I, § 8, cl. 18 — the Necessary-and-Proper Clause. In order to indicate the importance of enforcing the guarantees of Amendment XIV, its fifth section specifically provides: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Accordingly, Congress passed various measures for its enforcement. It is familiar history that much of this legislation was born of that vengeful spirit which to no small degree envenomed the Reconstruction era. Legislative respect for constitutional limitations was not at its height and Congress passed laws clearly unconstitutional. See Civil Rights Cases, 109 U. S. 3. One of the laws of this period was the Act of May 31, 1870, 16 Stat. 140. In its *141present form, as § 20, it is now here for the first time on full consideration as to its meaning and its constitutionality, unembarrassed by preoccupation both on the part of counsel and Court with the more compelling issue of the power of Congress to control State procedure for the election of federal officers. If § 20 were read as other legislation is read, by giving it the meaning which its language in its proper setting naturally and spontaneously yields, it is difficult to believe that there would be real doubt about the proper construction. The unstrained significance of the words chosen by Congress, the disclosed purpose for which they were chosen and to which they were limited, the always relevant implications of our federal system especially in the distribution of power and responsibility for the enforcement of the criminal law as between the States and the National Government, all converge to make plain what conduct Congress outlawed by the Act of 1870 and what impliedly it did not.
The Fourteenth Amendment prohibited a State from so acting as to deprive persons of new federal rights defined by it. Section 5 of the Amendment specifically authorized enabling legislation to enforce that prohibition. Since a State can act only through its officers, Congress provided for the prosecution of any officer who deprives others of their guaranteed rights and denied such an officer the right to defend by claiming the authority of the State for his action. In short, Congress said that no State can empower an officer to commit acts which the Constitution forbade the State from authorizing, whether such unauthorized command be given for the State by its legislative or judicial voice, or by a custom contradicting the written law. See Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362, 369. The present prosecution is not based on an officer’s claim that that for which the United States seeks his punishment was commanded or authorized by the law of his State. On the contrary, *142the present prosecution is based on the theory that Congress made it a federal offense for a State officer to violate the explicit law of his State. We are asked to construe legislation which was intended to effectuate prohibitions against States for defiance of the Constitution, to be equally applicable where a State duly obeys the Constitution, but an officer flouts State law and is unquestionably subject to punishment by the State for his disobedience.
So to read § 20 disregards not merely the normal function of language to express ideas appropriately. It fails not merely to leave to the States the province of local crime enforcement, that the proper balance of political forces in our federalism requires. It does both, heedless of the Congressional purpose, clearly evinced even during the feverish Reconstruction days, to leave undisturbed the power and the duty of the States to enforce their criminal law by restricting federal authority to the punishment only of those persons who violate federal rights under claim of State authority and not by exerting federal authority against offenders of State authority. Such a distortion of federal power devised against recalcitrant State authority never entered the minds of the proponents of the legislation.
Indeed, we have the weightiest evidence to indicate that they rejected that which now, after seventy-five years, the Government urges. Section 20 of the Criminal Code derived from § 2 of the Civil Rights Act of 1866, 14 Stat. 27. During the debate on that section, Senator Trumbull, the Chairman of the Senate Judiciary Committee, answered fears concerning the loose inclusiveness of the phrase “color of law.” In particular, opponents of the Act were troubled lest it would make criminals of State judges and officials for carrying out their legal duties. Senator Trumbull agreed that they would be guilty if they consciously helped to enforce discriminatory State *143legislation. Federal law, replied Senator Trumbull, was directed against those, and only against those, who were not punishable by State law precisely because they acted in obedience to unconstitutional State law and by State law justified their action. Said Senator Trumbull, “If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have anything to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against under color of State laws because he is colored, then it becomes necessary to interfere for his protection.” Cong. Globe, 39th Cong., 1st Sess., p. 1758. And this language applies equally to § 17 of the Act of May 31, 1870, 16 Stat. 140, 144 (now § 20 of the Criminal Code), which reenacted the Civil Rights Act.
That this legislation was confined to attempted deprivations of federal rights by State law and was not extended to breaches of State law by its officials,1 is likewise confirmed by observations of Senator Sherman, another leading Reconstruction statesman. When asked about the applicability of the 1870 Act to a Negro’s right to vote when State law provided for that right, Senator Sherman replied, “That is not the case with which we are dealing. I intend to propose an amendment to present a question of that kind. This bill only proposes to deal with offenses committed by officers or persons under color of existing State law, under color of existing State constitutions. No man could be convicted under this bill reported by the Judiciary Committee unless the denial of the right to vote was done under color or pretense of State regulation. The whole bill shows that. My honorable friend from California has not read this bill with his usual care if he does not see that that runs through the whole of the provisions of the first and second sections of the bill, which *144simply punish officers as well as persons for discrimination under color of State laws or constitutions; and so it provides all the way through.” Cong. Globe, 41st Cong., 2d Sess., p. 3663. The debates in Congress are barren of any indication that the supporters of the legislation now before us had the remotest notion of authorizing the National Government to prosecute State officers for conduct which their State had made a State offense where the settled custom of the State did not run counter to formulated law.
Were it otherwise it would indeed be surprising. It was natural to give the shelter of the Constitution to those basic human rights for the vindication of which the successful conduct of the Civil War was the end of a long process. And the extension of federal authority so as to guard against evasion by any State of these newly created federal rights was an obvious corollary. But to attribute to Congress the making overnight of a revolutionary change in the balance of the political relations between the National Government and the States without reason, is a very different thing. And to have provided for the National Government to take over the administration of criminal justice from the States to the extent of making every lawless act of the policeman on the beat or in the station house, whether by way of third degree or the illegal ransacking for evidence in a man's house (see Gouled v. United States, 255 U. S. 298; Byars v. United States, 273 U. S. 28; Brown v. Mississippi, 297 U. S. 278; Chambers v. Florida, 309 U. S. 227), a federal offense, would have constituted a revolutionary break with the past overnight. The desire for such a dislocation in our federal system plainly was not contemplated by the Lyman Trumbulls and the John Shermans, and not even by the Thaddeus Stevenses.
Regard for maintaining the delicate balance “between the judicial tribunals of the Union and of the States” in *145the enforcement of the criminal law has informed this Court, as it has influenced Congress, “in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between cohrts equally bound to guard and protect rights secured by the Constitution.” Ex parte Royall, 117 U. S. 241, 251. Observance of this basic principle under our system of Government has led this Court to abstain, even under more tempting circumstances than those now here, from needless extension of federal criminal authority into matters that normally are of State concern and for which the States had best be charged with responsibility.
We have reference to § 33 of the Judicial Code, as amended, 28 U. S. C. § 76. That provision gives the right of removal to a federal court of any criminal prosecution begun in a State court against a revenue officer of the United States “on account of any act done under color of his office or of any such [revenue] law.” Where a State prosecution for manslaughter is resisted by the claim that what was done was justifiably done by a United States officer one would suppose that this Court would be alert to construe very broadly “under color of his office or of any such law” in order to avoid the hazards of trial, whether through conscious or unconscious discrimination or hostility, of a United States officer accused of homicide and to assure him a trial in a presumably more impartial federal court.. But this Court long ago indicated that misuse of federal authority does not come within the statute’s protection. Tennessee v. Davis, 100 U. S. 257, 261-262. More recently, this Court in a series of cases unanimously insisted that a petition for removal must show with particularity that the offense for which the State is prosecuting resulted from a discharge of federal duty. “It must appear that the prosecution of him, for whatever offense, has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and *146he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty. . . . The defense he is to make is that of his immunity from punishment by the State, because what he did was justified by his duty under the federal law, and because he did nothing else on which the prosecution could be based.” Maryland v. Soper (No. 1), 270 U. S. 9, 33. And see Maryland v. Soper (No. 2), 270 U. S. 36; Maryland v. Soper (No. 3), 270 U. S. 44; Colorado v. Symes, 286 U. S. 510. To the suggestion that such a limited construction of the removal statute enacted for the protection of the United States officers would restrict its effectiveness, the answer was that if Congress chose to afford even greater protection and to withdraw from the States the right and duty to enforce their criminal law in their own courts, it should express its desire more specifically. Maryland v. Soper (No. 2), 270 U. S. 36, 42, 44. That answer should be binding in the situation now before us.
The reasons which led this Court to give such a re-tricted scope to the removal statute are even more compelling as to § 20. The matter concerns policies inherent in our federal system and the undesirable consequences of federal prosecution for crimes which are obviously and predominantly State crimes no matter how much sophisticated argumentation may give them the appearance of federal crimes. Congress has not expressed a contrary purpose, either by the language of its legislation or by anything appearing in the environment out of which its language came. The practice of government for seventy-five years likewise speaks against it. Nor is there a body of judicial opinion which bids us find in the unbridled excess of a State officer, constituting a crime under his State law, action taken “under color of law” which federal law forbids.
Only two reported cases considered § 20 before United States v. Classic, 313 U. S. 299, In United States v. Bun-*147tin, 10 F. 730, a teacher, in reliance on a State statute, refused admittance to a colored child, while in United States v. Stone, 188 F. 836, election supervisors who acted under a Maryland election law were held to act “under color of law.” In neither case was there a patent violation of State law but rather an attempt at justification under State law. United States v. Classic, supra, is the only decision that looks the other way. In that case primary election officials were held to have acted “under color of law” even though the acts complained of as a federal offense were likewise condemned by Louisiana law. The truth of the matter is that the focus of attention in the Classic case was not our present problem, but was the relation of primaries to the protection of the electoral process under the United States Constitution. The views in the Classic case thus reached ought not to stand in the way of a decision on the merits of a question which has now for the first time been fully explored and its implications for the workings of our federal system have been adequately revealed.
It was assumed quite needlessly in the Classic case that the scope of § 20 was coextensive with the Fourteenth Amendment. Because the weight of the case was elsewhere, we did not pursue the difference between the power granted to Congress by that Amendment to bar “any State” from depriving persons of the newly created constitutional rights and the limited extent to which Congress exercised that power, in what is now § 20, by making it an offense for one acting “under color of any law” to deprive another of such constitutional rights. It may well be that Congress could, within the bounds of the Fourteenth Amendment, treat action taken by a State official even though in defiance of State law and not condoned by ultimate State authority as the action of “a State.” It has never been satisfactorily explained how a State can be said to deprive a person of liberty or property without *148due process of law when the foundation of the claim is that a minor official has disobeyed the authentic command of his State. See Raymond v. Chicago Traction Co., 207 U. S. 20, 40, 41. Although action taken under such circumstances has been deemed to be deprivation by a “State” of rights guaranteed by the Fourteenth Amendment for purposes of federal jurisdiction, the doctrine has had a fluctuating and dubious history. Compare Barney v. City of New York, 193 U. S. 430, with Raymond v. Chicago Traction Co., supra; Memphis v. Cumberland Telephone Co., 218 U. S. 624, with Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278. Barney v. City of New York, supra, which ruled otherwise, although questioned, has never been overruled. See, for instance, Iowa-Des Moines Bank v. Bennett, 284 U. S. 239, 246-247, and Snowden v. Hughes, 321 U. S. 1, 13.1
But assuming unreservedly that conduct such as that now before us, perpetrated by State officers in flagrant defiance of State law, may be attributed to the State under the Fourteenth Amendment, this does not make it action under “color of any law.” Section 20 is much narrower than the power of Congress. Even though Congress might have swept within the federal criminal law any action that could be deemed within the vast reach of the Fourteenth Amendment, Congress did not do so. The presuppositions of our federal system, the pronouncements of the statesmen who shaped this legislation, and the normal meaning of language powerfully counsel against attributing to Congress intrusion into the sphere of criminal law tradition*149ally and naturally reserved for the States alone. When due account is taken of the considerations that have heretofore controlled the political and legal relations between the States and the National Government, there is not the slightest warrant in the reason of things for torturing language plainly designed for nullifying a claim of acting under a State law that conflicts with the Constitution so as to apply to situations where State law is in conformity with the Constitution and local misconduct is in undisputed violation of that State law. In the absence of clear direction by Congress we should leave to the States the enforcement of their criminal law, and not relieve States of the responsibility for vindicating wrongdoing that is essentially local or weaken the habits of local law enforcement by tempting reliance on federal authority for an occasional unpleasant task of local enforcement.
W-1 I — I
In our view then, the Government s attempt to bring an unjustifiable homicide by local Georgia peace officers within the defined limits of the federal Criminal Code cannot clear the first hurdle of the legal requirement that that which these officers are charged with doing must be done under color of Georgia law.
Since the majority of the Court do not share this conviction that the action of the Georgia peace officers was not perpetrated under color of law, we, too, must consider the constitutionality of § 20. All but two members of the Court apparently agree that insofar as § 20 purports to subject men to punishment for crime it fails to define what conduct is made criminal. As misuse of the criminal machinery is one of the most potent and familiar instruments of arbitrary government, proper regard for the rational requirement of definiteness in criminal statutes is basic to civil liberties. As such it is included in the constitutional guaranty of due process of law. But four *150members of the Court are of the opinion that this plain constitutional principle of definiteness in criminal statutes may be replaced by an elaborate scheme of constitutional exegesis whereby that which Congress has not defined the courts can define from time to time, with varying and conflicting definiteness in the decisions, and that, in any event, an undefined range of conduct may become sufficiently definite if only such undefined conduct is committed “willfully.”
In subjecting to punishment “deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States,” § 20 on its face makes criminal deprivation of the whole range of undefined appeals to the Constitution. Such is the true scope of the forbidden conduct. Its domain is unbounded and therefore too indefinite. Criminal statutes must have more or less specific contours. This has none.
To suggest that the “right” deprivation of which is made criminal by § 20 “has been made specific either by the express terms of the Constitution or by decisions interpreting it” hardly adds definiteness beyond that of the statute’s own terms. What provision is to be deemed “specific” “by the express terms of the Constitution” and what not “specific”? If the First Amendment safeguarding free speech be a “specific” provision, what about the Fourth? “All unreasonable searches and seizures are absolutely forbidden by the Fourth Amendment.” Nathanson v. United States, 290 U. S. 41, 46. Surely each is among the “rights, privileges, or immunities secured or protected by the Constitution,” deprivation of which is a crime under § 20. In any event, what are the criteria by which to determine what express provisions of the Constitution are “specific” and what provisions are not “specific”? And if the terms of § 20 in and of themselves are lacking in sufficient definiteness for a criminal statute, restriction within the framework of “decisions interpret*151ing” the Constitution cannot show the necessary definiteness. The illustrations given in the Court’s opinion “underline the inescapable vagueness due to the doubts and fluctuating character of decisions interpreting the Constitution.
This intrinsic vagueness of the terms of § 20 surely cannot be removed by making the statute applicable only where the defendant has the “requisite bad purpose.” Does that not amount to saying that the black heart of the defendant enables him to know what are the constitutional rights deprivation of which the statute forbids, although 'we as judges are not able to define their classes or their limits, or, at least, are not prepared to state what they aré unless it be to say that § 20 protects whatever rights the Constitution protects?
Under the construction proposed for § 20, in order for a jury to convict, it would be necessary “to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e. g. the fight to be tried by a court rather than by ordeal.” There is no question that Congress could provide for a penalty against deprivation by State officials “acting under color of any law” of “the right to be tried by a court rather than by ordeal.” But we cannot restrict the problem raised by § 20 to the validity of penalizing a deprivation of this specific constitutional right. We are dealing with the reach of the statute, for Congress has not particularized as the Court now particularizes. Such transforming interpolation is not interpretation. And that is recognized by the sentence just quoted, namely, that the jury in order to convict under § 20 must find that an accused “had the purpose to deprive” another “of a constitutional right,” giving this specific constitutional right as “e. g.,” by way of illustration. Hence a judge would have to define to the jury what the constitutional rights are deprivation of which is prohibited by § 20. If that is a legal question as to which *152the jury must take instruction from the court, at least the trial court must be possessed of the means of knowing with sufficient definiteness the range of “rights” that are “constitutional.” The court can hardly be helped out in determining that legal question by leaving it to the jury to decide whether the act was “willfully” committed.
It is not conceivable that this Court would find that a statute cast in the following terms would satisfy the constitutional requirement for definiteness:
“Whoever willfully commits any act which the Supreme Court of the United States shall find to be a deprivation of any right, privilege, or immunity secured or protected by the Constitution shall be imprisoned not more than, etc.”
If such a statute would fall for uncertainty, wherein does § 20 as construed by the Court differ and how can it survive?
It was settled early in our history that prosecutions in the federal courts could not be founded on any undefined body of so-called common law. United States v. Hudson, 7 Cranch 32; United States v. Gooding, 12 Wheat. 460. Federal prosecutions must be founded on delineation by Congress of what is made criminal. To base federal prosecutions on the shifting and indeterminate decisions of courts is to sanction prosecutions for crimes based on definitions made by courts. This is tantamount to creating a new body of federal criminal common law.
It cannot be too often emphasized that as basic a difference as any between our notions of law and those of legal systems not founded on Anglo-American conceptions of liberty is that crimes must be defined by the legislature. The legislature does not meet this requirement by issuing a blank check to courts for their retrospective finding that some act done in the past comes within the contingencies and conflicts that inhere in ascertaining the content of the Fourteenth Amendment by “the gradual process of *153judicial inclusion and exclusion. Davidson v. New Orleans, 96 U. S. 97, 104. Therefore, to subject to criminal punishment conduct that the court may eventually find to have been within the scope or the limitations of a legal doctrine underlying a decision is to satisfy the vital requirement for definiteness through an appearance of definiteness in the process of constitutional adjudication which every student of law knows not to comport with actuality. What the Constitution requires is a definiteness defined by the legislature, not one argumentatively spelled out through the judicial process which, precisely because it is a process, can not avoid incompleteness. A definiteness which requires so much subtlety to expound is hardly definite.
It is as novel as it is an inadmissible principle that a criminal statute of indefinite scope can be rendered definite by requiring that a person “willfully” commit what Congress has not defined but which, if Congress had defined, could constitutionally be outlawed. Of course Congress can prohibit the deprivation of enumerated constitutional rights. But if Congress makes it a crime to deprive another of any right protected by the Constitution — and that is what § 20 does — this Court cannot escape facing decisions as to what constitutional rights are covered by § 20 by saying that in any event, whatever they are, they must be taken away “willfully.” It has. not been explained how all the considerations of unconstitutional vagueness which are laid bare in. the early part of the Court’s opinion evaporate by suggesting that what is otherwise too vaguely defined must be “willfully” committed.
In the early law an undesired event attributable to a particular person was punished regardless of the state of mind of the actor. The rational development of criminal liability added a mental requirement for criminal culpability, except in a limited class of cases not here relevant. (See United States v. Balint, 258 U. S. 250.) That req*154uisite mental ingredient is expressed in various forms in criminal statutes, of which the word “willfully” is one of the most common. When a criminal statute prohibits something from being “willfully” done, “willfully” never defines the physical conduct or the result the bringing of which to pass is proscribed. “Willfully” merely adds a certain state of mind as a prerequisite to criminal responsibility for the otherwise proscribed act. If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening (see International Harvester Co. v. Kentucky, 234 U. S. 216; Collins v. Kentucky, 234 U. S. 634; United States v. Cohen Grocery Co., 255 U. S. 81; Cline v. Frink Dairy Co., 274 U. S. 445), then “willfully” bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. “Willfully” doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done “willfully.” It is true also of a statute that it cannot lift itself up by its bootstraps.
Certainly these considerations of vagueness imply unconstitutionality of the Act at least until 1909. For it was not until 1909 that the word “willfully” was introduced. But the legislative history of that addition affords no evidence whatever that anybody thought that “willfully” was added to save the statute from unconstitutionality. The Joint Committee of Congress on the Revision of Laws (which sponsored what became the Criminal Code) gives no such indication, for it did not propose “willfully”; the reports in neither House of Congress shed any light on the subject, for the bill in neither House proposed that “willfully” be added; no speech by anyone in charge of the *155bill in either House sheds any light on the subject; the report of the Conference Committee, from which “willfully” for the first time emerges, gives no explanation whatever; and the only reference we have is that to which the Court’s opinion refers (43 Cong. Rec., p. 3599). And that is an unilluminating remark by Senator Daniel of Virginia, who had no responsibility for the measure and who made the remark in the course of an exchange with Senator Heyburn of Idaho, who was in charge of the measure and who complained of an alleged attitude on the part of Southern members to filibuster against the bill because of the retention of Reconstruction legislation.
All this bears not merely on the significance of “willfully” in a presumably otherwise unconstitutionally vague statute. It also bears on the fact that, for the purpose of constitutionality, we are dealing not with an old statute that goes back to the Reconstruction days, but only to 1909.
Nor can support be found in the opinions of this Court for the proposition that “willfully” can make definite prohibitions otherwise indefinite.
In Omaechevarria v. Idaho, 246 U. S. 343, the Court sustained an Idaho statute prohibiting any person having charge of sheep from allowing them to graze “upon any range usually occupied by any cattle grower.” The statute was attacked under the Due Process Clause in that it failed to provide for the ascertainment of the boundaries of a “range” or for determining what length of time is necessary to constitute a prior occupation a “usual” one within the meaning of the Act. This attack upon the Idaho statute was rejected and for the following reasons:
“Men familiar with range conditions and desirous of observing the law will have little difficulty in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other [grazing] States. This *156statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court.” 246 U. S. at 348.
Certainly there is no comparison between a statute employing the concept of a western range and a statute outlawing the whole range of constitutional rights, unas-certained if not unascertainable.
To be sure, the opinion of Mr. Justice Brandéis also brought to its support § 6314 of Revised Codes of Idaho which provided that “In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence.” But this is merely an Idaho phrasing of the conventional saw in text books and decisions dealing with criminal law that there must be a mens rea for every offense. In other words, a guilty state of mind is usually required before one can be punished for an outlawed act. But the definition of the outlawed act is not derived from the state of mind with which it must be committed. All that Mr. Justice Brandéis meant by “indefiniteness” in the context of this statute was the claim that the statute did not give enough notice as to the act which was outlawed. But notice was given by the common knowledge of what a “range” was, and for good measure he suggested that under the Act a man would have to know that he was grazing sheep where he had no business to graze them. There is no analogy between the face of this Idaho statute and the face of our statute. The essential difference is that in the Idaho statute the outlawed act was defined; in § 20 it is undefined.
In Hygrade Provision Co. v. Sherman, 266 U. S. 497, New York punished the misrepresentation of meat as “kosher” or as satisfying “orthodox Hebrew religious requirements.” Here, too, the objection of indefiniteness was rejected by this Court. The objection bordered on the frivolous. In this case, too, the opinion of the Court, as is the way of opinions, softened the blow by saying that *157there was no danger of anyone being convicted for not knowing what he was doing, for it required him to have consciousness that he was offering meat as “kosher” meat when he knew very well that it was not.
Thus in both these cases this Court was saying that the criminal statutes under scrutiny, although very specific, did not expose any innocent person to the hazards of unfair conviction, because not merely did the legislation outlaw specifically defined conduct, but guilty knowledge of such defined criminality was also required. It thereby took the legislation outside the scope of United States v. Balint, 258 U. S. 250, in which the Court sustained the prosecution of one wholly innocent of knowledge of the act, commission of which the statute explicitly forbade.
This case does not involve denying adequate power to Congress. There is no difficulty in passing effective legislation for the protection of civil rights against improper State action. What we are concerned with here is something basic in a democratic society, namely, the avoidance of the injustice of prohibiting conduct in terms so vague as to make the understanding of what is proscribed a guess-work too difficult for confident judgment even for the judges of the highest Court in the land.
Ill
By holding, in this case, that State officials who violate State law nevertheless act “under color of” State law, and by establishing as federal crimes violations of the vast, undisclosed range of the Fourteenth Amendment, this Court now creates new delicate and complicated problems for the enforcement of the criminal law. The answers given to these problems, in view of the tremendous scope of potential offenses against the Fourteenth Amendment, are bound to produce a confusion detrimental to the administration of criminal justice.
The Government recognizes that “this is the first case brought before this Court in which § 20 has been applied *158to deprivations of rights secured by the Fourteenth Amendment.” It is not denied that the Government’s contention would make a potential offender against this act of any State official who as a judge admitted a confession of crime, or who as judge of a State court of last resort sustained admission of a confession, which we should later hold constitutionally inadmissible, or who as a public service commissioner issued a regulatory order which we should later hold denied due process or who as a municipal officer stopped any conduct we later should hold to be constitutionally protected. The Due Process Clause of the Fourteenth Amendment has a content the scope of which this Court determines only as cases come here from time to time and then not without close division and reversals of position. Such a dubious construction of a criminal statute should not be made unless language compels.
That such a pliable instrument of prosecution is to be feared appears to be recognized by the Government. It urges three safeguards against abuse of the broad powers of prosecution for which it contends. (1) Congress, it says, will supervise the Department’s policies and curb excesses by withdrawal of funds. It surely is casting an impossible burden upon Congress to expect it to police the propriety of prosecutions by the Department of Justice. Nor would such detailed oversight by Congress make for the effective administration of the criminal law. (2) The Government further urges that, since prosecutions must be brought in the district where the crime was committed, the judge and jurors of that locality can be depended upon to protect against federal interference with State law enforcement. Such a suggestion would, for practical purposes, transfer the functions of this Court, which adjudicates questions concerning the proper relationship between the federal and State governments, to jurors whose function is to resolve factual questions. Moreover, *159if federal and State prosecutions are subject to the same influences, it is difficult to see what need there is for taking the prosecution out of the hands of the State. After all, Georgia citizens sitting as a federal grand jury indicted and other Georgia citizens sitting as a federal trial jury convicted Screws and his associates; and it was a Georgia judge who charged more strongly against them than this Court thinks he should have.
Finally, the Department of Justice gives us this assurance of its moderation:
“(3) The Department of Justice has established a policy of strict self-limitation with regard to prosecutions under the civil rights acts. When violations of such statutes are reported, the Department requires that efforts be made to encourage state officials to take appropriate action under state law. To assure consistent observance of this policy in the enforcement of the civil rights statutes, all United States Attorneys have been instructed to submit cases to the Department for approval before prosecutions or investigations are instituted. The number of prosecutions which have been brought under the civil rights statutes is small. No statistics are available with respect to the number of prosecutions prior to 1939, when a special Civil Rights Section was established in the Department of Justice. Only two cases during this period have been reported: United States v. Buntin, 10 Fed. 730 (C. C. S. D. Ohio), and United States v. Stone, 188 Fed. 836 (D. Md.). Since 1939, the number of complaints received annually by the Civil Rights Section has ranged from 8,000 to 14,000, but in no year have prosecutions under both Sections 20 and 19, its companion statute, exceeded 76. In the fiscal year 1943, for example, 31 full investigations of alleged violations of Section 20 were conducted, and three cases were brought to trial. In the following fiscal year there were 55 such investigations, and prosecutions were instituted in 12 cases.
*160“Complaints of violations are often submitted to the Department by local law enforcement officials who for one reason or another may feel themselves powerless to take action under state law. It is primarily in this area, namely, where the official position of the wrongdoers has apparently rendered the State unable or unwilling to institute proceedings, that the statute has come into operation. Thus, in the case at bar, the Solicitor General of the Albany Circuit in the State of Georgia, which included Baker County, testified (R. 42): 'There has been no complaint filed with me in connection with the death of Bobby Hall against Sheriff Screws, Jones, and Kelley. As to whom I depend for investigation of matters that come into my Court, I am an attorney, I am not a detective and I depend on evidence that is available after I come to Court or get into the case . . . The sheriffs and other peace officers of the community generally get the evidence and I act as the attorney for the state. I rely on my sheriffs and policemen and peace officers and private citizens also who prosecute each other to investigate the charges that are lodged in court.’ ”
But such a “policy of strict self-limitation” is not accompanied by assurance of permanent tenure and immortality of those who make it the policy. Evil men are rarely given power; they take it over from better men to whom it had been entrusted. There can be no doubt that this shapeless and all-embracing statute can serve as a dangerous instrument of political intimidation and coercion in the hands of those so inclined.
We are told local authorities cannot be relied upon for courageous and prompt action, that often they have personal or political reasons for refusing to prosecute. If it be significantly true that crimes against local law cannot be locally prosecuted, it is an ominous sign indeed. In any event, the cure is a reinvigoration of State responsibility. It is not an undue incursion of remote federal *161authority into local duties with consequent debilitation of local responsibility.
The complicated and subtle problems for law enforcement raised by the Court’s decision emphasize the conclusion that § 20 was never designed for the use to which it has now been fashioned. The Government admits that it is appropriate to leave the punishment of such crimes as this to local authorities. Regard for this wisdom in federal-State relations was not left by Congress to executive discretion. It is, we are convinced, embodied in the statute itself.
Iowa-Des Moines Bank v. Bennett, supra, illustrates the situation where there can be no doubt that the action complained of was the action of a State. That case came here from a State court as the ultimate voice of State law authenticating the alleged illegal action as the law of the State. Cases of which Lane v. Wilson, 307 U. S. 268, is an illustration are also to be differentiated. In that case election officials discriminated illegally against Negroes not in defiance of a State statute but under its authority.