Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

27  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  The other civil rights era decision invoked as precedent in Bush for upsetting a state court’s interpretation of state law was Bouie v. City of Columbia . 86 That case is equally weak support for the Article II rationale in Bush , but for a different reason. In Bouie , the ques- tion was whether it violated the Due Process Clause to convict sit-in demonstrators under a criminal trespass statute that barred “entry on lands of another after notice prohibiting same” 87 when the protestors had been commanded to depart, but not warned against entering in the first place. The Supreme Court ruled that for the state supreme court to interpret this statute to cover refusals to leave as well as forbidden entries “unforseeably and retroactively expanded” its me- aning. 88 In the process of so ruling, the Court had to reject the state court’s determination that the criminal trespass statute always had been construed this way. The Justices were able to cite only dicta, not actual holdings, in support of their refutation of the state court’s interpretation of state law. The Bouie Court’s extraordinarily stringent interpretation of the notice requirement imposed by the Due Process Clause, 89 and its unwillingness to defer to a state court’s ostensibly sensible cons- truction of a state statute, can be understood only in the context of the times. Between 1960 and 1964, the Supreme Court confron- ted dozens of cases in which sit-in demonstrators were prosecuted for breach of the peace, trespass, and sundry other offenses. 90 The Justices were disinclined to affirm the criminal convictions of per- sons with whose racial protest they generally sympathized. Yet, they also were unwilling to vindicate the protesters’ principal legal claim that the state action necessary for an equal protection violation was present when the state simply was enforcing background common law property rules. 91 Instead, the Justices identified a wide range of imaginative (specious) grounds for reversing the convictions without 86 378 U.S. 347 (1964). 87 d . at 349 n.1 (reproducing statute). 88 Id . at 352. 89 See, e.g., Bouie , 378 U.S. at 363, 367 (Black, J., dissenting) (noting that nobody could have been misled by this construc- tion of the statute). 90 See, e.g., Thomas P. Lewis, The Sit-in Cases: Great Expectations, 1963 Sup. Ct. Rev. 101; Monrad G. Paulsen, The Sit-in Cases of 1964: “But Answer Came There None,” 1964 Sup. Ct. Rev. 137. 91 I have described some of the internal deliberations in the sit-in cases, with citations to the original documents, in Mi- chael Klarman, An Interpretive History of Modern Equal Protection, 90 Mich. L. Rev. 213, 272-76 (1991).