WASHINGTON – Today, Constitutional Accountability Center is releasing new scholarship by CAC Civil Rights Director David Gans—forthcoming in 2022 in the Cardozo Law Review online journal De·Novo—that unpacks the text and history of the iconic Reconstruction-era statute, 42 U.S.C  § 1983. Gans explains how Section 1983, and the accountability for official wrongdoing that Congress enacted it to achieve, “has been gutted by the Supreme Court.”

Read the new Issue Brief here. An excerpt:

The Supreme Court has converted a statute designed to open the courthouse doors to those aggrieved by official abuse of power into a statute that bolts the courthouse doors firmly shut, immunizing wrongdoers rather than holding them to account. The respect for enacted text the Supreme Court repeatedly preaches has been missing in action when it comes to Section 1983.

Rather than honoring the language chosen by Congress to enforce the Fourteenth Amendment’s transformative guarantees of universal equality and true freedom and to ensure accountability for constitutional law breakers, the modern Supreme Court has rewritten the law’s text, inventing a host of complex and confusing judge-made doctrines that exalt the interests of public officials over the fundamental rights of the people they are supposed to protect. Despite the fact that Section 1983 explicitly gives individuals a right to sue government actors for violating the Constitution, the Supreme Court’s modern Section 1983 jurisprudence is more concerned with protecting the police and other government officials from suit than in reining in systemic violence, discrimination, and abuse of power, visited all too often on the most marginalized in our society. The Court’s jurisprudence turns Section 1983 on its head.

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“National attention to issues of accountability for officials who deprive people of their constitutional rights unfortunately may have waned since the summer of 2020 and the murder of George Floyd,” Gans said. “The importance of such issues to America’s system of justice, however, is as critical as ever, as the Supreme Court continues to flout the text and history of Section 1983 by closing the courthouse doors to people trying to hold officials accountable in court. The true history of Section 1983”, Gans continued, “shows that Congress made a conscious choice not to provide any official immunities because it did not want to place state officials above the law. The Supreme Court has simply turned its back on Congress’s judgment.”

CAC President Elizabeth Wydra added, “Everyone in America—perhaps self-professed originalists and textualists in particular—should find the Court’s continued re-writing of Section 1983 intolerable. David’s scholarship is an invaluable addition to the body of work examining the origins of Section 1983, and provides powerful evidence for why, if the Supreme Court refuses to clean up its own damaging jurisprudence in this area, Congress must step in and do it for them.”

Resources:  

“Repairing Our System of Constitutional Accountability: Reflections on the 150th Anniversary of Section 1983,” CAC Issue Brief, David Gans, November 2021 (forthcoming in 2022 Cardozo Law Review De·Novo): https://www.theusconstitution.org/think_tank/issue-brief-repairing-our-system-of-constitutional-accountability-reflections-on-the-150th-anniversary-of-section-1983/

“‘We Do Not Want to be Hunted’: The Right to Be Secure and Our Constitutional Story of Race and Policing,” CAC Text and History Narrative, David Gans, July 2020 (11 Columbia Journal of Race & Law 239): https://www.theusconstitution.org/think_tank/racistpolicing/

“The Shadow Docket and Police Accountability,” CAC Blog, David Gans, October 29, 2021: https://www.theusconstitution.org/blog/the-shadow-docket-and-police-accountability/

“From Qualified Immunity to Voting Rights, the Supreme Court Guts Civil Rights Laws,” David Gans, The American Prospect, July 16, 2021: https://prospect.org/justice/qualified-immunity-voting-rights-supreme-court-guts-civil-rights-laws/

“The Supreme Court Bears Responsibility for George Floyd’s Death,” David Gans, Slate, May 25, 2021: https://slate.com/news-and-politics/2021/05/george-floyd-supreme-court-blame.html

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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