Outrages. The word radical republicans used to describe the Klan-inspired violence raging in the South. Murders, whippings, and other violent attacks, all aimed to prevent southern blacks from voting. Something had to be done. Through factitious political maneuverings spanning two Congresses and roiling both houses, one piece of outrage legislation emerged—the Ku Klux Act—one part of which survives until this day. 42 U.S.C. § 1983, commonly referred to as Section 1983, would eventually become the most important provision for the vindication of constitutional rights in American history.
Radical Republicans demanded action. They refused to adjourn Congress until some legislation was passed to empower the federal government to combat the outrages against blacks and republicans in the South. Motivated by making good on their anti-slavery constitutionalist commitments, the radicals were not satisfied with simply ratifying the Reconstruction Amendments. Freedom required full protection for civil rights. This guarantee was unfulfilled so long as outrages persisted in the South.
But moderate, pro-tariff Republicans balked. They feared protracted debate over outrage legislation could lead to a messy debate over tariffs.
The radicals needed President Ulysses S. Grant’s support. But President Grant was a man caught in the middle—silently favoring the radicals but unwilling to rock the boat. Undaunted, the radicals waged an intense lobbying campaign for the President’s support.
“A condition of affairs now exists in some States of the Union rendering life and property insecure,” was the first line of Grant’s message to Congress supporting outrage legislation. The violence was “beyond the control of State authorities” and was making “the carrying of the mails and the collection of the revenue dangerous.” The radicals had prevailed on President Grant; now they needed legislation.
Samuel Shellabarger was the man with the plan. As soon as Grant’s message was read to the House, Shellabarger moved for committee and was the driving force behind what would become the Klu Klux Act, today Section 1983.
The most long-lasting result of the anti-slavery, radical Republican efforts was Section 1 of the Act, which created a private cause of action against “any person who, under color of any law . . . shall subject, or cause to be subjected any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States.” It was signed into law by President Grant 150 years ago today, on April 20, 1871.
Although dormant for almost a century, it made a groundbreaking resurgence in 1961. That year, the United States Supreme Court decided Monroe v. Pape—holding that state officials can be held liable in federal court when they infringe an individual’s constitutional rights, even if the official does so in violation of state law.
Despite Section 1983’s central place in vindicating civil rights, numerous jurists and scholars have called into question Monroe’s holding, and the breadth of Section 1983 generally. Justice Frankfurter did so in his Monroe dissent. The late Justice Scalia, many years later, agreed. He could not find statutory authorization in the language “under color of” state law to justify allowing individuals to sue state officials who violated constitutional rights while also violating state law. How could an official be acting “under color of” state law and violate state law at the same time?
The anti-slavery origins of this law answer the question. Section 1983’s history makes clear that Monroe was, in fact, correct. Representative Samuel Shellabarger authored the Klu Klux Act by revising Senator Frederick Frelinghuysen’s earlier draft outrage legislation. He changed “under pretense of” state law to “under color of” state law. Shellabarger was far more radical than Frelinghuysen. That the final language was of radical-republican origin strongly favors a broader, rather than constricted, reading of the statute.
More importantly, in the 19th century it was common to use “under color of” law to describe misconduct committed under pretense of state authority. As Steven L. Winter has ably demonstrated, “under color of law” has been used for six-centuries in Anglo-American jurisprudence to describe officials who exceeded their official power and violated state law.
But the debates over Section 1983’s place in modern constitutional litigation abound beyond Monroe. For instance, in his recent dissent from denial of certiorari in Baxter v. Bracey, Justice Clarence Thomas called for revisiting qualified immunity but also for revisiting Monroe v. Pape, viewing the two doctrines as interrelated. Both doctrines affect the scope of relief under Section 1983, and he noted an “understandable” “concern about revisiting one doctrine but not the other.”
Moreover, for those who wish to see a greater breadth of constitutional rights protections than current jurisprudence allows, Section 1983 may appear a victim of its own success. It is now viewed as the model for what it would take to hold federal officials equally accountable. Because Section 1983 expressly applies only to state and local officials and because no Section 1983 analogue exists when it comes to federal officials, it is now generally understood that federal officials cannot be sued in federal courts for violations of constitutional rights. This often means that when federal officials violate constitutional rights, individual Americans are left without a remedy.
On its 150th birthday, Section 1983 celebrates a history of success in vindicating constitutional rights. But often its roots in the anti-slavery constitutionalism of 1871 are obscured, leaving the true depth of its protective force untapped. Many interesting questions remain about its scope and what future use it will serve in protecting constitutional rights. On this day, however, it achieves the primary goal of its framers; in the words of Senator Frelinghuysen: “[T]he injured party should have an original action in our Federal courts, so that by injunction or by the recovery of damages he could have relief against the party who under color of such law is guilty of infringing his rights.”
For a deeper dive into the text, history, and meaning of Section 1983, tune in to the Institute for Justice’s webinar “Outrage Legislation: Civil Rights & Section 1983 at 150 Years” today, April 20, 2021, at 12pm.