Repairing Our System of Constitutional Accountability: Reflections on the 150th Anniversary of Section 1983

Abstract

Section 1983 is a landmark statute that provides the foundation for holding state and local governments and their agents accountable when they violate constitutional rights. Unfortunately, the Supreme Court’s interpretation of this statute is a glaring exception to the rule that courts should enforce the plain language of Congress’s statutory commands. Rather than enforce the statute’s text and ensure the accountability that its drafters passed it to achieve, the Supreme Court has created four interlocking doctrines that squelch its promise of accountability: qualified immunity, absolute immunity, strict limits on local governmental liability, and the exclusion of states from Section 1983.

This Essay, written to mark the 150th anniversary of Section 1983, does a deep dive into the text and history of Section 1983 and recovers a critical part of the story of its enactment that is all too often ignored: Congress made a conscious choice not to provide any official immunities because it did not want to place state officials above the law. Indeed, Congress passed Section 1983 to ensure that governments and their agents could be held accountable in a court of law. By gutting Section 1983 through rank judicial legislation, the Supreme Court has let states and local governments and their agents violate our most cherished constitutional rights with impunity and left those victimized by abuse of power without any remedy.

Keywords: Section 1983, Fourteenth Amendment, constitutional remedies, qualified immunity, absolute immunity, municipal liability, constitutional accountability, rule of law, textualism, policing, prosecutorial misconduct