A 'Milder Measure of Villainy': The Unknown History of 42 U.S.C. Sec. 1983 and the Meaning of 'Under Color of' Law

Abstract

Chapter 42 U.S. C. § 1983, was originally enacted as section 1 of the Ku Klux Act. Not surprisingly, the history of the Ku Klux Act has played an important role in the interpretation of 42 U.S. C. § 1983. Unfortunately, the generally accepted history of the Ku Klux Act is incomplete, distorted, and, in some respects, demonstrably wrong.

The conventional history of the Ku Klux Act is flawed in three respects. First, it omits the first several chapters of the story. The conventional history begins with Grant's March 23, 1871, message to the Forty-second Congress and completely overlooks the political and legislative maneuvering that preceded Grant's message.

Second, the conventional history overstates Grant's role as the instigator in the enactment of the Ku Klux Act when he was, at most, a hesitant supporter of a struggle waged by the congressional Radicals - and refused to take any public position on the issue until persuaded to do so by a persistent lobbying effort.

Third, the conventional history fails to disclose that there was a rough draft of the section of the Ku Klux Act that became 42 U.S. C. § 1983. In its least accurate version, the conventional history states that the Ku Klux Act was drafted by the Morton-Butler Committee. In its more accurate version, the conventional history treats the Ku Klux Act as having sprung entirely from the mind of Samuel Shellabarger. However, this version fails to mention that Shellabarger substantially copied section 1 from a bill written by Senator Frelinghuysen and never recognizes that Shellabarger's revisions of that section shed important light on the meaning of 42 U.S. C. § 1983.

This article completes and corrects the historical record. By doing so, it should dispel the remarkably persistent myth that the Forty-second Congress never intended the provision to cover constitutional wrongs unless those wrongs were actually authorized by state law - a myth that Justices Scalia and Thomas have attempted to use as a license to restrict the scope of 42 U.S. C. § 1983 in ways that they admit would otherwise be unjustifiable.

Keywords: Section 1983, 42 U.S. C. § 1983, Under color of law, Ku Klux, Ku Klux Klan, Klan, Grant, Morton-Butler, outrage legislation, Radical Republicans, Radicals, Shellabarger, Frelinghuysen

JEL Classification: K10, N41