(dissenting).
The vague and conclusory allegations in the ten removal petitions, covering almost sixty persons, involving many separate offenses for a variety of acts, some done on different days and different places, the willingness of the state to waive all objections to “formal” defects in the removal petitions in order to establish a “precedent”, and the presentation of all these removal petitions on appeal as one conglomerate have profoundly obscured the issue for our determination. Judge Friendly, with his usual scholarly excellence, has met the apparent insurmountable task of dealing with these appeals on this basis and he has attempted to delineate the general scope of 28 U.S.C. § 1443(2). However, I am convinced that the problem presented by these cases can only be decided case by case and on the basis of informative petitions, see 28 U.S.C. § 1446(a) (requiring “a short and plain statement of the facts”). Moreover, I find myself in disagreement with the basic conclusion of the majority opinion and therefore dissent.
The importance of approaching these appeals on a case-by-case basis cannot be overestimated. A great array of charges, including assault third, disorderly conduct, maintaining a nuisance, resisting an officer, obstructing railway cars, unlawful intrusion, unlawful assembly, loitering at a school building and including truancy, are involved in this assortment of removal petitions, and yet the conglomerate presentation and disposition of these appeals tend to ignore the possibility that a difference in the specific conduct charged might make a difference under § 1443(2). For example, if the petitioners arrested and prosecuted for violating the truancy law had merely sought to induce parents not to send their children to a segregated school which denies the “equality of law” guaranteed by the Constitution, this, in my opinion, could be a. case covered by § 1443(2), while, on the other hand, a charge of third degree assault might very well not be covered.
Moreover, even on the majority’s view that the conduct involved in all these petitions can be reduced to protests against racial discrimination and segregation, some of the petitioners might well be entitled to removal under the majority’s own interpretation of § 1443 (2). I understand my brothers to suggest that under § 1443(2) removal might be available to individuals arrested and prosecuted for taking self-help measures to secure equal treatment guaranteed by federal laws providing for equal rights, and further that a peaceful protest might be considered such a self-help measure.1 The majority insists that this issue is not present in these appeals and that no words could be added to the removal petitions that would change their affirmance of all the remands. However, I am not so confident. Some of the petitioners, at least those charged with loitering at a school building and inducing truancy, might well have been doing nothing more than peacefully picketing a public school under the belief that it was a segregated public school maintained in violation of the Equal Protection Clause. Any doubts as to whether this is the alleged factual pattern should, in all fairness, be resolved by affording petitioners an opportunity to amend. For the removal petitions were drafted primarily with the first clause of § 1443 in mind and this is a case of first impression, involving a previously unexplored part of § 1443 and raising wholly unique and delicate issues. I refuse to rely on the fact that the protests were widely publicized and much less on the failure of appellants to fill in the supposed missing facts during oral argument or in their not-so-thorough briefs; this lapse could be readily explained by the fact that the majority’s *276interpretation of § 1443(2) could hardly have been anticipated.
My brothers’ desire to help the district courts in this circuit, the Supreme Court and even Congress by exposing the problems and stating what is “their proper solution under existing law” is indeed commendable. However, we have long learned that this desire can only be satisfied, at least for federal judges, through the decision of a particular case on the basis on a readily discernible set of facts. And, although I may be unduly skeptical, I have some serious doubts as to whether my brothers’ decision will provide any of their hoped-for “guidance.” Distinction is built upon distinction, and the clarifying foundation of a single factual pattern is lacking; and the obvious and frequent need to spell out what is not being decided today amply reveals the danger of abstract opinions.
I do not intend to pass judgment on these cases, either individually or collectively. Yet certain propositions in the majority opinion urgently require comment, even at the risk of joining the rather abstract discussion.
My disagreement with the majority’s interpretation of § 1443(2) stems from its refusal to recognize any meaningful color of authority emanating from the Fourteenth Amendment.
The “color of authority” concept of § 1443(2) is not correctly described or defined. The majority suggests that in order for a law to provide “color of authority” to perform an act, it must do more than protect conduct by giving remedies to the offended party — it must be “an encouragement” or must “direct” the individual to act.
This seems to be a rather obvious departure from common usage and understanding. An individual acts under the “color of authority” of a law at least when his conduct is protected by that law, when interferences with that activity are unlawful and the subject of civil or criminal legal remedies. To say that “something more” than this protection is required is illusory, granted that we are talking about individuals acting in a nonofficial capacity. The most familiar legal technique for “encouraging” certain private activity is to make interferences with that activity unlawful. And one does not have to fully embrace Mr. Justice Holmes’ positivism, see The Path of the Law, 10 Harv.L.Rev. 457 (1897) to realize that usually or invariably unlawful conduct is the subject of civil or criminal sanctions, or, to look at it from the view of the “offended party” rather than the “bad man,” that unlawful conduct is the subject of civil or criminal remedies. The law not only protects conduct by making interferences with it unlawful, but also by providing legal remedies against such interferences.
The majority, while apparently conceding that this is the usual understanding of the words “color of authority,” insists that the “particular context” in which these words are used requires a much more restrictive interpretation. One alleged aspect of this context is that § 1443(2) “indubitably applies” to officers and quasi-officers. But I fail to appreciate the significance of this fact. Either the assumption underlying our analysis of the “color of authority” concept, to borrow a thought from the majority, “is or is not” that the section is also applicable to non-officers. The manner in which a private person acts under the authority of a law need not be the same as that of an officer. Furthermore, there is no reason for supposing that an officer acts under the “color of authority of any law providing for equal rights” only in the rather limited situation when there is a statute or order specifically directing him to do some particular act. Cf. Cunningham v. Neagle, 135 U.S. 1, 58-59, 10 S.Ct. 658, 666, 34 L.Ed. 55 (1890). The second alleged aspect of the “particular context” is that the first clause of § 1443 uses the phrase “a right under” rather than “under color of authority.” The majority concludes that “It necessarily follows that ‘under color of authority derived from’ in § 1443(2) has a narrower meaning than ‘a right under’ in § 1443 (1) . . . . ” It seems to me, how*277ever, not that one phrase is necessarily “narrower” than the other, but that the special province of § 1443(1) is the denial of equal rights in the course of proceedings in state courts, while § 1443(2) focuses on the denial of equal rights in different situations. This shift focus adequately explains the change from “a right under” to “under color of authority.”
One aspect of the “particular context” seems to escape the majority, namely, that the “color of authority” referred to in § 1443(2) is to be derived from “any law providing for equal rights.” The words “color of authority” should not be read in isolation but rather as an integral part of the phrase “color of authority derived from any law providing for equal rights." The majority readily admits that the Equal Protection Clause and all the civil rights statutes are laws providing for equal rights. Yet at the same time the words “color of authority” are so construed as to virtually preclude any of these laws from ever giving what is deemed to be the requisite kind of authority. In construing what the phrase “color of authority derived from any law providing for equal rights” means it would be fair to presume that the kind of authority required would be of the type generally provided by the laws providing for equal rights. For the most part, these laws do not explicitly and specifically “encourage” and “direct” people to do things in the stringent sense suggested by the majority. Instead they protect certain activity by declaring interferences with that activity unlawful and by providing civil and criminal remedies.2 To interpret the “color of authority” concept more stringently would virtually make § 1443(2) unavailable, even to officers, in the bulk of civil rights cases, the acknowledged province of that section.
On occasion the majority makes a generous reference to the Civil Rights Act of 1964 and the other civil rights statutes, and intimates that they might provide the “color of authority” for protests seeking to secure the equal rights guaranteed by these laws. I doubt whether this comports with the majority’s stated definition of the “color of authority” concept, and, if it does, I must once again express my doubt as to whether the majority is being consistent in affirming the remand of all these cases. For example, appellants arrested for loitering at a school building and inducing truancy might well-have been doing nothing more than peacefully picketing a segregated public school maintained in violation of the Equal Protection Clause.2 3 This *278clause is no less a law providing for equal rights than the Civil Rights Act of 1964 and the other civil rights statutes, and it confers the same type and quantum of authority. The affinity between the Fourteenth Amendment and the civil rights statutes is far more than obvious. As Chief Justice Vinson wrote in Hurd v. Hodge, 334 U.S. 24, 32, 68 S. Ct. 847, 851, 92 L.Ed. 1187 (1948):
“It is clear that in many significant respects the statute [the Civil Rights Act of 1866] and the [Fourteenth] Amendment were expressions of the same general congressional policy. Indeed, as the legislative debates reveal, one of the primary purposes of many members of Congress in supporting the adoption of the Fourteenth Amendment was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land.”
See generally Frank & Munro, The Original Understanding of “Equal Protection of the Law,” 50 Colum.L.Rev. 131 (1950).
That the Equal Protection Clause provides for “equal rights” cannot be doubted and there is no reason why the word “law” in § 1443(2) should be confined to Congressional enactments, nor why only Congressional enactments could confer the type of “authority” required by § 1443(2). Such an artificial and unduly restrictive position has been rejected in other contexts, see, e. g., Cunningham v. Neagle, 135 U.S. 1, 10 S.Ct. 658 (1890), and it ignores the fact that there would be little reason for .putting in a Congressional statute what was already provided for by a constitutional amendment. Obviously the reason Congress did -not explicitly include within, for instance, the Civil Rights Act of 1964 a flat prohibition condemning segregated education is that it operated on the rather reasonable presumption (see Title IV, now 42 U.S.C. §§ 2000c-2000c-9) that this denial of equal rights was already proscribed by the Equal Protection Clause, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). Although the Fourteenth Amendment “makes no attempt to enumerate the rights it was designed to protect” but “speaks in general terms,” these terms “are as comprehensive as possible” and create a “positive immunity” against state-imposed racial discrimination, Strauder v. West Virginia, 100 U.S. 303, 307, 308, 25 L.Ed. 664 (1880). If, according to the majority, removal under § 1443(2) might possibly be available to individuals peacefully protesting against segregated public accommodations, it is difficult to see why removal would not be equally available under § 1443(2) to individuals peacefully protesting against segregated public education.
Some appellants seem - to rely on a theory of self-help, and it seems important to state their argument in all its fullness, putting to one side any interest in determining whether it is tacitly acknowledged in the majority opinion. As the Supreme Court recently stressed in Hamm v. City of Rock Hill, 85 S.Ct. 384 (1964), some measures undertaken by private individuals to secure rights guaranteed by a law providing for equal rights may well come within the protection of that law and these individ*279uals may well be acting under the authority of that law. Moreover, appellants could reasonably argue that if, for example, it would be a form of self-help for a Negro to attempt to register in a state university that the state has sought to maintain exclusively for the whites, then the same Negro would be employing a form of self-help to eliminate the denial of his equal rights if he picketed the university after the officials refused to register him because of his race. The difficult problem is to determine which types of self-help measures come within the ambit of protection and authority of the law granting the equal rights, or more specifically, whether appellants’ alleged peaceful4 protest and demonstration against the denial of these rights falls within that ambit.
Two factors must be considered in grappling with this problem. First, peaceful protest, speech and petition, is a form of self-help not unknown during the era of Reconstruction when § 1443 (2) was forged, see, e. g., Aptheker, A Documentary History of the Negro People in the United States, 536-37 (1951); McPherson, The Negro’s Civil War, 245-70 (1965). Secondly, this form of self-help — peaceful protest and demonstration — is tremendously important in our federal constitutional scheme. It is constitutionally protected, see Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). As Mr. Justice Harlan asserted in his concurrence in Garner v. State of Louisiana, 368 U.S. 157, 201-202, 82 S.Ct. 248, 271, 7 L.Ed. 2d 207 (1961)., in regard to a similar form of self-help, the peaceful sit-in,
“It, like speech, appeals to good sense and to 'the power of reason as applied through public discussion,’ Whitney v. People of State of California, 274 U.S. 357, 375 [47 S.Ct. 641, 648, 71 L.Ed. 1095] (Brandéis, J„ concurring), just as much as, if not more than, a public oration delivered from a soapbox at a street corner * * * If the act of displaying a red flag as a symbol of opposition to organized government is a liberty encompassed within free speech as protected by the Fourteenth Amendment, Stromberg v. People of State of California, supra [283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117] the act of sitting at a privately owned lunch counter with the consent of the owner, as a demonstration of opposition to enforced segregation, is surely within the same range of protections.”
See Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Fields v. South Carolina, 375 U.S. 44, 84 S.Ct. 149, 11 L.Ed.2d 107 (1963); Henry v. City of Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964).
This seems to be the relevance of the Due Process Clause to appellants’ arguments. It is not that the Due Process Clause, in isolation and of its own force, is a “law providing for equal rights,” under whose authority appellants allegedly acted, but rather that appellants sought to effectuate the mandates of the *280Equal Protection Clause, or the Fourteenth Amendment as a whole, and did so in a way that is allegedly protected by the Due Process Clause, or the Fourteenth Amendment. We should approach the problems inherent in some of these petitions, not by severing and separately compartmentalizing the Due Process and Equal Protection Clauses, but realizing that they are both part of the same constitutional amendment, undoubtedly the most basic of all laws providing for equal rights, and that these clauses often intersect. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). Some appellants, perhaps those arrested for loitering at a school building and inducing truancy, might be able to allege such an occasion has arisen and argue that this was the “law” under Whose authority they acted. Yet given the conglomerate approach of the majority, the vague, conclusory and uninformative character of the pleadings, and the failure of the district courts to get beyond the pleadings, it seems impossible and inappropriate for us to assess this argument now.
I will say, however, that there seems to be little basis for the majority’s fear that if any of the appellants who were peacefully protesting are entitled to removal under § 1443(2), then “whenever a state suit or prosecution concerned ■what allegedly was an unconstitutional deprivation of the universal right to ‘liberty’ ” removal would be possible. A limiting principle could perhaps be found in the fact that the liberty involved in some of these removal petitions is the liberty to express dissatisfaction with the state’s alleged denial of equal rights. The purpose and form of the exercise of liberty is not without significance, for, as seen in this light, the exercise of this liberty is merely another form of self-help to secure the rights guaranteed by the Equal Protection Clause or other federal laws providing for equal rights.
The majority’s effort to resolve some of the basic questions raised in these appeals by reconstructing the intention of the Congress of 1875 5 is also troubling. The thrust of the argument is to show that the Due Process Clause is not a “law providing for equal rights” within the meaning of § 1443(2). Although I do not think that appellants’ argument need stand or fall on that proposition, I gather that the majority is prepared to turn the edge of its argument to meet any interpretation of § 1443(2) that would entitle any of the petitioners to removal under any set of facts they could reasonably allege. I therefore must insist that “this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute,” Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956). Legislative history may often shed light on the meaning of a statute, yet we have learned before that little authoritative information can be obtained from the legislative history of the civil rights legislation of the last century, see Brown v. Board of Education, 347 U.S. 483, 489, 74 S.Ct. 686, 688, 98 L.Ed. 873 (1954).
In attempting to reconstruct “the intention” of the 1875 Congress, the majority relies not on debates or reports or statements by the revisers or legislators, few of which were specifically addressed to what is now subdivision 2 of § 1443, but rather on the proposition that no such far-reaching result as would follow from allowing removal to some of these petitioners could have been intended. For the most part the proposition rests on the argument that the codifiers of 1875 were responsible for the phrase “under color of authority derived from any law providing for equal rights” and that “so great a substantive change” as would flow from allowing removal under § 1443 (2) could not have been intended to be accomplished by “what was represented to be a mere codification.” However, two points can be made; first, it is not at all dear that in the eyes of the 1875 legislators and revisers none of petitioners would have been entitled to removal un*281der the law existing prior to the codification, and secondly, in order to understand how far reaching and radical .the change would be, one must place the civil rights removal provisions in its historical context, if any assessment of the intention of the 1875 Congress is to be made.
In support of the first point, appellants could make a strong argument that the 1875 revisers used the phrase “any law providing for equal rights” as a shorthand technique for referring to all the three previous civil rights acts, the Civil Rights Act of 1866,6 the Civil Rights Act of 1870 (sections 16 and 17 of which are now 42 U.S.C. §§ 1981 and 1982), and the Civil Rights Act of 1871 (§ 1 of which is now 42 U.S.C. § 1983), not to mention the Fourteenth Amendment. Or, to put it another way, the majority concedes, that the phrase “any law providing for equal rights” referred to the first and second Civil Rights Acts of 1866 and 1870, and the burden is then cast upon it, to show that the revisers or Congress did not intend to include, or rather intended to exclude, the third act in this series of civil rights legislation from this supposedly “readily explicable” reference to “any law providing for equal rights.” 7 Thus burden would seem to be intensified by the text of 42 U.S.C. § 1983 when it was original*282ly enacted in 1871 as part of the third Civil Rights Act:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, add to furnish the means of their vindication”; and the other remedial laws of the United States which are in their nature applicable in such cases.”
Appellants could argue that the language “other remedies provided in like cases in * * * [the federal] courts, under the [1866] aet” as well as “and the other remedial laws of the United States which are in their nature applicable in such cases” was a sufficient basis for the 1875 revisers and legislators to have believed or assumed (but see footnote 12 in the majority opinion arguing only that this assumption or belief might have been mistaken) that all of § 3, including the removal provisions, of the 1866 Act was already available to those claimed that they were being prosecuted for exercising the rights protected under § 1983; and that by using the phrase “any law providing for equal rights” they would also be referring to this law. This argument could be further strengthened by the fact that the second Civil Rights Act of 1870, which the majority recognizes as a “law providing for equal rights” within the meaning of § 1443 (2), incorporated the removal provisions by a similar summary reference to the Act of 1866;8 the revisers and legislators might have assumed that if such a reference could make the removal provisions of the 1866 Act available in connection with the rights protected by the 1870 Act, the same would be true for the 1871 Act. I do not pass judgment on this argument, but I have spelled it out only to reveal one of my many reasons for believing that any attempt to reconstruct the intention of the 1875 legislators, even if it is agreed that their primary purpose was codification, is likely only to yield uncertainty and indecisiveness.9
*283Secondly, in determining how “great a substantive change” would be wrought, some insight into the 1875 legislators’ view of proper federal-state relations is required, if any reliance is to be placed on legislative history. The legislators of the Reconstruction Era saw the federal courts as a necessary and perhaps the most appropriate forum for the protection of federal rights. This conception was expressed in, for example, the Act of April 9, 1866, 14 Stat. 27, § 3 of which was the first step toward the present § 1443; the Act of February 5, 1867, 14 Stat. 385, the habeas corpus statute (now 28 U.S.C. § 2241(c) (3)) providing a federal forum to try a state prisoner’s claim that he is being deprived of liberty in violation of the Constitution, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); the Act of April 20, 1871, 17 Stat. 13, the antecedent to §>§ 1983 and 1985 giving the federal courts original jurisdiction to remedy, either in a civil or criminal action, claimed violations of federal constitutional rights, see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); and the Judiciary Act of March 3, 1875, § 1, 18 Stat. 470, giving the federal courts original (28 U.S.C. § 1331) and removal (28 U.S.C. § 1441) jurisdiction of civil actions where “the decision depends upon the determination of” *284a federal question, see Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 201, 41 S.Ct. 243, 246, 65 L.Ed. 577 (1921). Conceivably legislators today might well wish to exclude the Fourteenth Amendment from the ambit of the § 1443(2) category of “any law providing for equal rights,” but that has little bearing on what the legislators of 1875 “intended”, and it is hardly a justification for us to interpret the past product of Congress to achieve that result. Given the fact that after the Reconstruction Era non-majority power blocs have long been able to prevent Congress from acting, and even deliberating,, to secure and protect civil rights, it would not be unfair for us now to await for Congress itself to decide through the constitutionally proscribed procedures whether it wishes to restrict one of the significant statutory gains of the Reconstruction Era. I would presume, however, that the Congress that enacted Title IX of the Civil Rights Act of 1964 in order to make meaningful the right to remove in civil rights cases would not be so inclined, to say the least.10 This Congress did not expect us to limit subdivision 2 of § 1443 as Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1880), and Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633 (1906), had limited subdivision 1.
I would vacate the orders of remand, return the cases to the district courts, afford appellants an opportunity to amend their removal petitions, and have the district courts conduct full hearings on adequate pleadings to determine whether any of petitioners were being prosecuted for acts done under color of authority derived from any law providing for equal rights.
. See infra pp. 277-280.
. Appellants could conceivably argue that if the state permits or would permit protests or expressions of dissatisfaction by other groups and for other causes, then they were acting under -the color of authority of the Equal Protection Clause or § 1981, certainly laws providing for equal rights, -in that they command the State not to interfere with them and thereby protects that activity, see Niemotko v. State of Maryland, 340 U.S. 268, 272, 71 S.Ct. 325, 95 L.Ed. 267 (1951) ; cf. Steele v. Superior Court of California, 164 F.2d 781, 782 (9 Cir. 1947), cert. denied, 333 U.S. 861, 68 S.Ct. 739, 92 L.Ed. 1140 (1948), and Hill v. Com. of Pennsylvania, 183 F.Supp. 126 (W.D.Pa. 1960), both suggesting that there would be removal (though not specifying whether it would be under subdivision 1 or 2 of § 1443) if the arrest or prosecution was alleged to violate the Equal Protection Clause. The majority insists that appellants do not urge that the interferences, arrests and prosecutions of appellants had the purpose and effect of discriminatorily or unequally denying them of their rights to speak, assemble and protest grievances. But, given the confusing presentation of all these removal petitions and the fact that only during oral argument did we learn that petitioners have decided to rely exclusively on the second -subdivision of § 1443, I fail to see how the majority could be so confident.
. Some of the petitioners apparently allege that they were protesting against the denial of rights guaranteed by civil rights statutes. 42 U.S.O. § 1981 guarantees, among other things, the right to be free from discriminatory and unequal -treatment by police, and some of the petitioners claim that -they were protesting against the denial of this right (one aspect of “police brutality”). Some petitioners also seem to allege that they were protesting against “the denial of *278the equal protection of the laws to Negroes in the city, state and nation with reference to housing” and although such an allegation is vague, condusory, and totally inadequate, conceivably these petitioners might claim, if they were even given an opportunity to do so, that they were protesting against racial discrimination in federally assisted housing that violated the President’s order, Executive Order No. 11063, Nov. 21. 1962, 27 F.R. 11527, “Equal Opportunity in Housing”; and there seems to be some authority for the proposition that an executive order is within the ambit of the word “law” in the § 1443(2) phrase “any law providing for equal rights,” see Hodgson v. Millward, 12 Fed.Cas. No. 6, 285 (No. 6568) (C.C.E.D.Pa.1863) (see 3 Grant (Pa. 1863) 412, for the facts)., approved in Braun v. Sauerwein, 10 Wall. 218, 224, 19 L.Ed. 895 (1869).
Cf. also Hamm. v. City of Rock Hill, 85 S.Ct. 384 (1964).
. Presumably the question whether the protests were peaceful is to be determined in the federal district court. See Hodgson v. Millward, 12 Fed.Cas. 285 (No. 6568) (C.C.E.D.Pa.1863) ; cf. Tennessee v. Davis, 100 U.S. 257, 261-262, 25 L.Ed. 648 (1879) (federal officer case). See generally Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963.) (habeas corpus), stressing the importance of a full and fair evidentiary hearing in a federal forum when federal constitutional rights are at stake.
At one point the majority suggests that the “law” invoked by petitioners as the “law providing for equal rights” must provide the (color of) authority “for disregard of [state] laws providing for the equal punishment of disturbers of the peace.” But this is either to misread § 1443(2) or to misunderstand the position of some of the petitioners. Some seem to insist that they were doing nothing more than peacefully picketing, not in the least unlawful in New York; and they claim that they acted under the color of authority of federal laws providing for equal rights, all that is required by § 1443(2), not that they violated state laws under the color of authority of federal laws providing for equal rights.
. See footnote 7 in the majority opinion.
. The majority emphasizes that none of the acts of which § 3 of the Civil Rights Act of 1866 was originally linked (§ 1 of the 1866 and the Freedmen’s Bureau Act) spoke of protecting “freedom of speech or petition against state infringement.” However, section 1 of the Civil Rights Act of 1866 provided in part “all persons born in the United States * * * of every race and color, without regard to any previous condition of slavery or involuntary servitude * * * shall have the same rights * * * to full and equal benefit of all laws and proceedings for the security of person and property * * * ” Given the fact that the 1866 Act preceded the enactment of the Fourteenth Amendment, although it followed the enactment of the Thirteenth Amendment, this catch-all and vague phrase “full and equal benefit of all' laws” might have been intended to afford some measure of protection to the freedom of speech and petition guaranteed by the First Amendment and similar state constitutional provisions for those attempting to secure the full measure of equality for the freedmen. Cf. Hurd v. Hodge, 334 U.S. 24, 32, 68 S.Ct. 847, 92 L.Ed. 1187 (1948).
. The majority’s discussion of the legislative history is prefaced by the statement “all that is ‘authorized’ by the statutes [42 U.S.C. §§ 1983 and 1985] * * * is the award of damages or of criminal punishment.” The question is not, however, whether the “law providing for equal-rights” authorized the protests in the way that a principal may have “authorized” an agent, but rather whether the individual acted under the authority of that law. As suggested earlier, supra- p. 276, an individual would be acting under the authority of the law if he were protected in that activity by that law; and although § 1983 does not provide the grant of substantive rights, it presumes or tacitly incorporates the grant in the Fourteenth Amendment (§ 1983 was originally enacted as section 1 of the 1871 Act “to enforce the Provisions of the Fourteenth Amendment * * * ” 17 Stat. 13) and one of the fundamental means of protecting any conduct is, as § 1983 does, to provide a legal remedy for interferences with that activity. If petitioners would have a remedy under § 1983, against those interfering with their conduct, they could well argue that they were acting under the “color of authority” of § 1983.
The mere fact that § 1983 is “coextensive with the whole reach of the Constitution” does not preclude the possibility that it is a “law providing for equal rights,” and much less that it could not have been viewed as such hy the 1875 legislators and revisers. The deprivation of constitutional rights stemming from racial discrimination. are certainly proscribed, and remedies provided, by that law, and this seems to have been the primary concern of the legislators, see generally Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The more difficult question to resolve is whether § 1983 could also be viewed as “a law providing for equal rights” when the deprivation of constitutional rights does not stem from racial discrimination. This would create the further problem of deciding whether a law could be classified as a “law providing for equal rights” for all purposes, if in one primary sense it does provide for equal rights.
. “Section 18. And be tt further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said act.”
It should be noted that the Civil Rights Act of 1870 was considered the first enforcement act (entitled “An Act to enforce the Right of Citizens of the United States to vote in the Several States of the Union and for other Purposes”) and the Civil Rights Act of 1871 considered the second enforcement act; this would support the tendency to view them together, as the members of the same class — “any law providing for equal rights.”
. Presumably the majority would have us believe that the use of the disjunctive “or” in what is now 28 U.S.O. § 1343, implies that the 1875 Congress perceived a sharp distinction between on the one hand, rights “secured by the Constitution,” and, on the other hand, rights “secured by any law providing for equal rights,” and that a Congress that set up-these two different categories would not view the Constitution, or any part of it, as being a “law providing for equal rights.”
*283This does not, however, meet the argument that § 1983 is a “law providing for equal rights.” Moreover, the use of the disjunctive does not necessarily imply two mutually exclusive categories; for example, the Equal Protection Clause, concededly a law providing for equal rights, might well fall into both categories. Instead, the use of the disjunctive suggests to me that some legislators believed that some of the civil rights acts have guaranteed more rights than the Constitution, or that in the future other statutes, such as the fourth Civil Rights Act, Act of March 1, 1875, § 3, 18 Stat. 335, 336, would do so, or that some legislators believed that not every part of the Constitution guaranteeing rights, privileges and immunities is also a “law providing for equal- rights.” Appellants could make this latter point with little damage to a position that maintains that the Equal Protection Clause or the Fourteenth Amendment as a whole is a law providing for equal rights. For certain of the “basic- guarantees,” such as the prohibition against states passing “any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts” (Article I, section 10, clause 1), have little relation to the Equal Protection Clause, or the Fourteenth Amendment, although the Civil War Amendments contributed to the demise of the Dred Scott decision, Scott v. Sandford, 60 U.S. 393, 15 L.Ed. 691, by making it abundantly clear that the freedmen were “citizens” of the United States and entitled to all the rights, privileges and immunities of such citizens.
This last point could perhaps serve as a source of distinguishing, if one deems it necessary to do so, the passing remarks of Justice Harlan in Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896), a case involving a claimed violation of the prohibition against ex post facto laws. There is a more direct relationship to the Fourteenth Amendment when some petitioners claim that they were exercising a “liberty” protected by that Amendment to pressure the state to cease denying its Negro citizens “the equal protection of the laws” guaranteed by that Amendment.
On the issue of ease authority invoked by the majority, I might add that it is difficult to see how Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943) provides “inferentially” or otherwise, “strong” authority for the remand of all these petitions, even ignoring the fact that that case involved “freedom of speech and of religion” and that case need not be removable under § 1443(2) on what I understand to be “the view of the appellants here.” The possibility of remand was not considered in the briefs or opinions, and I venture to say that Justices are not so omniscient that it would be fair for the majority to presume that they considered the possibility of removal under § 1443(2) when they held that a federal court could not enjoin a state prosecution; just as there is a difference between enjoining police officers under 42 U.S.C. § 1983 and removal under 28 U.S.C. § 1443, there is a difference between removing a prosecution to another forum and enjoining that prosecution.
. See, e.g., the statement of one opponent of the Civil' Rights Act of 1964: “The catalogue of lawsuits which title IX would affect incorporates, among others, all suits in- which the defendant might in-vote the equal protection clause of the 14th Amendment. The list is too long to-itemize.” 1964 U.S.Code, Cong. & Admin.News p. 2478.