Proposals to Amend the Civil Rights Act, 42 U.S.C. § 1983
Michael A. Berch
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Rebecca White Berch
affiliation not provided to SSRN
McGeorge Law Review, Vol.29, pp. 825-844, 1998
The Civil Rights Act of 1871 lay moribund for nearly 100 years. In 1961, the Supreme Court breathed life into the statute's key phrase 'under color of any [state law]' by extending its reach to actions by government officials who violate state law. Courts have since struggled to find the meaning of the statute and the scope of the constitutional guarantees that it embraces. The Supreme Court has issued more than a score of major opinions interpreting the statute in light of the intent of the 42nd Congress. Even if the Court could resolve the conflicts among the lower courts, significant questions linger: Should the Court be tethered to the intent of the 42nd Congress? Can it truly discern that intention? Or instead, should it forthrightly expound federal common law principles and interpret the statute in light of contemporary values and policies? Would it not be preferable for Congress to set the judicial process in motion again, with a new and clarified point of departure, a new impetus and direction? This article argues that Congress has the duty to reconsider the statutory basis for civil rights actions and give the statute the moral force and clear direction that it presently lacks when the courts supply its content. This article proposes eight essential subject matter areas for congressional review with a discussion of the Supreme Court cases that should inform the legislative dialogue. The article also considers and critiques the Court decisions that have prompted the call for legislative review.
Number of Pages in PDF File: 20
Keywords: civil rights, federal common law, Section 1983Accepted Paper Series
Date posted: May 29, 2009
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