ISSUE BRIEF: Repairing Our System of Constitutional Accountability: Reflections on the 150th Anniversary of Section 1983
Cardozo L. Rev. De·Novo (Forthcoming 2022)
Enacted in 1871 against the backdrop of horrific state and Ku Klux Klan violence aimed at undoing Reconstruction and a criminal justice system that systematically devalued Black life, Section 1983 gave those victimized by official abuse of power a critical tool to hold state and local governments and their officials accountable in a court of law. It aimed to stop state actors and others from killing, brutalizing, and terrorizing Black people with impunity. Section 1983 sought to “carry into execution the guarantees of the Constitution in favor of personal security and personal rights,” reflecting that, in our constitutional system, “judicial tribunals of the country are the places to which the citizen resorts for protection of his person and his property in every case in a free government.”
In the text of Section 1983, Congress demanded government accountability, seeking to put an end to the denial of fundamental rights and subjugation of those seeking to enjoy the promise of freedom after centuries of chattel slavery. Indeed, Congress modeled Section 1983 on the Civil Rights Act of 1866, a statute that refused to provide any official immunities because that would “place officials above the law.” The accountability Section 1983 sought to achieve, however, remains elusive because the remedy Congress designed has been gutted by the Supreme Court. 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.