Abstract

http://ssrn.com/abstract=2195729
 
 

Footnotes (181)



 


 



Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe


Sheldon H. Nahmod


Illinois Institute of Technology - Chicago-Kent College of Law

January 2, 2013

17 Lewis & Clark Law Review 1019 (2013)
Chicago-Kent College of Law Research Paper No. 2013-04

Abstract:     
Section 1983, enacted in 1871, famously provides a damages remedy against state and local government officials and local governments for violations of constitutional rights. But it was only in 1951, in the seminal decision of Tenney v. Brandhove, a legislative immunity case involving an admitted Communist, that the Supreme Court for the first time expressly interpreted the language of section 1983. Ten years later, in 1961, the Court handed down another seminal section 1983 decision: Monroe v. Pape involved a section 1983 claim brought by an African-American alleging police misconduct. Both cases pitted two influential Supreme Court justices and FDR appointees, Felix Frankfurter and William Douglas, against one another in majority and dissenting opinions. Justice Frankfurter was an unremitting advocate of federalism, deference to politically accountable bodies, and judicial restraint. In contrast, Justice Douglas was an ardent proponent of individual rights who had relatively little concern for federalism.

I tell of the birth of section 1983 jurisprudence through the stories of these two cases. Their stories are contained in the papers of Justices Frankfurter and Douglas and in their majority and dissenting opinions. They are also contained in the parties’ petitions for certiorari and briefs and in Monroe’s oral argument. Finally, these stories can only be understood against the background of the political and social settings in which Tenney and Monroe arose. The Cold War and anti-Communist sentiment situate Tenney while the Civil Rights movement and the post-Brown era situate Monroe.

These stories are of interest both to section 1983 scholars and to historians of civil rights and constitutional law. First, Justice Frankfurter played an outsized role in both decisions. Second, these decisions demonstrate that the early and deep tension between individual rights and federalism — a tension that began with the Fourteenth Amendment and continues to this day — was present at the very beginning of the development of the Supreme Court’s section 1983 jurisprudence. The certiorari petitions and briefs in these cases and the oral argument in Monroe also articulate this tension. Finally, the different political and social contexts in which Tenney and Monroe were decided illuminate the decisions themselves.

Number of Pages in PDF File: 44

Keywords: Section 1983, Supreme Court, Constitution, constitutional law, federalism, individual rights, civil rights, civil liberties, legal history, Tenney v. Brandhove, Monroe v. Pape, Justice Felix Frankfurter, Justice William Douglas

JEL Classification: K10, K19, K30, K39

working papers series





Download This Paper

Date posted: January 6, 2013 ; Last revised: February 27, 2014

Suggested Citation

Nahmod, Sheldon H., Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe (January 2, 2013). 17 Lewis & Clark Law Review 1019 (2013); Chicago-Kent College of Law Research Paper No. 2013-04. Available at SSRN: http://ssrn.com/abstract=2195729 or http://dx.doi.org/10.2139/ssrn.2195729

Contact Information

Sheldon H. Nahmod (Contact Author)
Illinois Institute of Technology - Chicago-Kent College of Law ( email )
565 W. Adams St.
Chicago, IL 60661-3691
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,119
Downloads: 181
Download Rank: 99,469
Footnotes:  181

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.343 seconds