Reconsidering Section 1983's Nonabrogation of Sovereign Immunity

68 Pages Posted: 30 Mar 2021 Last revised: 29 Jul 2021

Date Written: December 23, 2020


Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw contravenes commonsense interpretive practice, works a methodological anomaly, and offends foundational democratic values. This Article also contends that the caselaw rests on inappropriate assumptions that members of Congress during Reconstruction thought about federalism the same way members of the Court a century later did.

Turning to an affirmative critique, this Article explores Section 1983’s semantic meaning and expected applications. Among other things, this analysis uncovers evidence that some members of the public may have initially understood the statute to reach states—and that members of Congress inadvertently amended the default definition of “person” in 1874. The upshot is that despite credible counterarguments, the best reading of Section 1983 may make states suable.

Finally, this Article explores implications for reforming constitutional-tort law. In particular, it introduces the policy landscape and proposes a path forward with an initial focus on Fourth Amendment excessive force claims and a gradual extension to other contexts.

Keywords: 42 U.S.C. § 1983, sovereign immunity, federal courts, constitutional law, statutory interpretation, civil rights, excessive force, Fourth Amendment

Suggested Citation

Crocker, Katherine Mims, Reconsidering Section 1983's Nonabrogation of Sovereign Immunity (December 23, 2020). 73 Florida Law Review 523 (2021), Available at SSRN:

Katherine Mims Crocker (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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