(concurring).
Judges do not live in ivory towers; they realize that their opinions are frequently misunderstood, misinterpreted and read otherwise than intended. Since this appeals raises extraordinarily delicate problems, which have been explored in Judge Friendly’s able opinion, and so many of which may have an important impact in the civil rights area and on the administration of the federal courts, I deem it my responsibility to elucidate my reasons for concurring in today’s decision.
Weighty problems in the sensitive area of federal-state relationships are involved in what the nation’s press has recently termed “the rage to remove.” Time Magazine, Oct. 30, 1964, p. 88. On the one hand, the already overburdened lower federal courts should not be deluged with every state criminal case bearing any alleged connection to civil rights no matter how slight unless this is mandated. At the same time, we would be closing our eyes to the practical realities of the contemporary national scene if we did not recognize, along with Congress, that federal rights would have only paper meaning if state criminal prosecutions could never — whatever the circumstances — be removed to the federal courts.
Judges are not “forbidden to know as judges what [they] see as men.” Ho AhKow v. Nunan, 5 Sawy. 552, 560, Fed. Cas.No.6,546 (1879). The necessity for a federal forum is not confined to specified regions of the country. Guarantees of equality may be ignored on both sides of the Mason-Dixon line, compare Brown v. Board of Education,. 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), with *273Taylor v. Board of Education (New Rochelle, N. Y.), 191 F.Supp. 181 (S.D.N.Y.), aff’d, 294 F.2d 36 (2d Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961), and on either of our ocean coasts, compare Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), with Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The conditions which justify removal, not their geographic setting, provide the predicate for our constitutional and statutory duties.
This makes it all the more important that we be unmistakably clear as to our present holding. But it does not require us to settle, once and for all time, every problem which might conceivably arise under an imprecise and inexpertly drafted section of a statute, almost 100 years old and never before applied in the manner the appellants urge. As appellate judges we have an obligation to lay down guidelines as clear as the circumstances permit for the federal district courts and to avoid an overly technical approach that will have meaning only for the cases before us. At the same time, I am mindful of Senator Dodd’s recent recognition in the debates leading to passage of the 1964 Civil Rights Act that it is extremely difficult to specify with precision the kinds of cases which ought to be removable under Section 1443. 110 Cong.Rec. 6739-40 (daily ed. April 6, 1964). My decision, to concur is made in the light of these competing considerations.
I agree with Judge Friendly that it is unnecessary to decide and that we have not decided whether subdivision (2) covers only officers and those persons assisting them or acting in some way in behalf of government. In this connection, it seems imperative that we, as well as Congress, recognize that federal intervention has all too often proved essential to safeguard federal rights from state emasculation, and that some state courts unfortunately have not been immune to the epidemic of prejudice and intolerance. Against such a background, the statutory right of removal in certain instances appears but another effort to provide a measure of federal protection for the rights of the Negro. We have not decided today whether for the private citizen that right exists only in a § 1443(1) situation, in which removal has been judicially confined to limited, and perhaps unduly restrictive, situations. See Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880); Com. of Kentucky v. Powers, 201 U.S. 1, 126 S.Ct. 387, 50 L.Ed. 633 (1906).
I also believe that subdivision (2) was intended to apply to state prosecutions for acts done under the color of authority of rights stated in terms of equality, but not to acts protected by the general constitutional guarantee of liberty. The statute, in- short, is applicable where the persons seeking removal are being prosecuted for doing something which a specific federal law providing for equal rights gave them the impetus and authority to do. This would seem to mean, as Judge Friendly has articulated, that removal is available to persons arrested for acts connected with the self-enforcement of the right to full and equal enjoyment of the facilities of hotels, restaurants, theatres, and other public places. And the right to remove in such cases is of vital significance for it gives meaning to Congress’ enactments ensuring equal rights and its directions and authorizations, express or implied, that the beneficiaries should enjoy those rights free from restraint by the states; the federal courts, in those instances, will be available to make the rights viable.
Since the Bill of Rights and the Fourteenth Amendment were intended to safeguard the fundamental rights of individuals against governmental impairment, judges are sorely tempted, when the state’s awesome powers must be weighed against the citizen’s rights, to stretch the meaning of statutes in order to strike the balance in favor of the individual. But, Justice Cardozo reminded us in his typically poignant language, that a judge “is not a knight errant roaming at will in pursuit of his own idea of beauty or of goodness * * * *274He is not to yield to spasmodic sentiment, to vague and unregulated benevolence * * * ” The Nature of the Judicial Process 144 (1921).
A caveat is in order here. I must emphasize that we are not saying the petitioners are forever barred from coming into the federal courts to protect their constitutional rights. Indeed, the contrary is true, for if convicted in the state courts, they may still seek review in the Supreme Court or invoke the time-honored writ of habeas corpus in a federal court to vindicate their federal rights. The Supreme Court’s recent decision in Hamm v. City of Rock Hill, 85 S.Ct. 384 (1964) , directly reviewing state court convictions, is striking proof of the cloak of federal protection afforded individuals in prosecutions by the states. The Court’s holding that it is not a crime to attempt peacefully to secure equal treatment in a place of public accommodation indicates a willingness not only “to obliterate the effect of a distressing chapter of our history,” but also to give full meaning to the constitutional guarantee, of equal treatment under the law for all citizens. See also Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) .
Because the problem before us is so difficult, my brothers have discussed extensively whatever authorities they believe shed some light on its resolution. But, with this done, it is important to place in proper focus the sole question we face. By our decision today we are attempting to unravel the words of a statute, not constitutional rights, and to decide whether the petitioners in this case are entitled in the first instance to a federal trial of a state charge. I do not believe that they are for all available evidence which would help us resolve the meaning of this ambiguous statute points in the other direction.
If our reading of § 1443(2) in this difficult and uncertain area is too narrow, Congress is still available for enlargement or clarification of the statute, which all on this panel agree lacks clarity. If removal should be more freely available, legislative consideration and action can- best bring about a fair accommodation of the competing interests. The function of weighing and appraising the host of factors involved, were we to adopt the novel argument urged upon us for removal of these cases under an amphibolic subdivision of such, an antique and venerable statute, is “more appropriately for those who write the laws, rather than for those who interpret them.” United States v. Gilman, 347 U.S. 507, 513, 74 S.Ct. 695, 698, 98 L.Ed. 898 (1954). As Mr. Justice Frankfurter once perceptively noted, “where policy is expressed by the primary lawmaking agency in a democracy, that is by the legislature, judges must respect such expressions by adding to or substracting from- the explicit terms which the lawmakers used no more than is called for by the shorthand nature of the language.” Westin, The Supreme Court: Views from Inside 83 (1961).1 Indeed, the suggestion in the dissenting opinion that the loose conglomeration of inartistic petitions disables us from giving guidance for future litigation, together with a candid recognition that formulation of a clear, all-encompassing standard is virtually impossible, indicates that it *275is for Congress, not us, to adopt a broader reading.
With this exposition of my views, I concur in Judge FRIENDLY’S thorough opinion.
. Practical considerations should never impede judicial recognition of an individual’s right to redress in the federal courts. But if the right of removal under § 1443 (2) is to be broadened, Congress can consider the insurmountable burdens that would, for example, be cast upon the nine judges of the Federal District Court for the Northern District of California if the 814 Berkeley students recently arrested for free-speech demonstrations on the college campus were entitled to remove their prosecutions to the federal court on the ground that they were protesting alleged violations of the equal protection clause. As recently as 1961, Congress recognized the plight of the overburdened federal courts by creating 73 new judge-ships. 75 Stat. 80 (1961). Further Congressional action along such lines would seem to be a necessary corollary to enlargement of the removal jurisdiction.