Constitutional Recalibration: Lessons from New Mexico

Abstract

On and off over the past several decades, and with particular force and urgency since George Floyd’s murder in May 2020, we have been engaged in a national conversation about the scope of government misconduct and the need for meaningful accountability. Civil lawsuits have long been one of the only means of getting some measure of justice when officials abuse their constitutional authority and they are often, in my view, the best among the available alternatives. But their power has been greatly diminished in recent decades. Those filing suit for constitutional violations have traditionally looked to federal court for vindication. Congress passed the Ku Klux Klan Act—part of which, known now as 42 U.S.C. § 1983, authorized civil suits—in 1871, during Reconstruction following the Civil War, as formerly enslaved people were being tortured and killed while state and local officials participated in the violence or stood idly by. At the time, state courts and state law were considered inhospitable to suits brought by Black people; in most states, they were not even allowed to testify. In the view of the congressmen who supported the Ku Klux Klan Act, federal judges and juries were “able to rise above prejudices or bad passions or terror more easily” than their state counterparts. Thanks to Supreme Court decisions narrowly interpreting the Act and the Fourteenth Amendment, § 1983 lay dormant for almost a century: The Court first recognized that people could use the statute to sue government officials for violating their constitutional rights only in 1961. Since that time, so many government-friendly protections have been read into § 1983 that it has become a shadow of its aspirational self. Section 1983 doctrine, as it operates today, would likely be a great disappointment to those in Congress who supported the Act’s passage a century and a half ago. In 2021, New Mexico offered a groundbreaking response to calls for more meaningful accountability: The New Mexico Civil Rights Act (NMCRA), which created a right to sue for violations of the New Mexico Constitution.7 The NMCRA allows people to sue local governments when their employees violate state constitutional rights, and prohibits the use of qualified immunity as a defense. The NMCRA additionally allows for prevailing plaintiffs to recover their attorneys’ fees, and requires local governments to collect information about successful cases. Section 1983 was passed by Congress to make up for inadequacies in state civil rights protections. Exactly 150 years later, New Mexico passed its Civil Rights Act to recalibrate civil rights protections in important ways that respond to long-standing and pressing concerns about the limitations of § 1983. Given the current state of affairs in Congress and the United States Supreme Court, state-level reforms like those enacted by New Mexico are the best and most realistic hope for this type of constitutional recalibration. New Mexico is, therefore, a bellwether. In my view, both the substantive provisions of the NMCRA and New Mexico’s process of enacting and implementing that Act offer valuable lessons for other states across the country that may consider this type of constitutional recalibration in the future. In this essay, I offer four important lessons that lawmakers and advocates around the country should learn from New Mexico—lessons that I hope New Mexico will continue to heed.

Keywords: constitutional law, government misconduct, 42 U.S.C. § 1983, Ku Klux Klan Act, Supreme Court, New Mexico, qualified immunity