Abstract

In 1965, Northwestern University Law Review published Professor Marshall Shapo’s article, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond.1 Professor Shapo’s paper analyzed the origins of constitutional tort law, which consists of suits for damages for constitutional violations committed by government officials or the governments themselves. The article began with an account of the post-Civil War background of 42 U.S.C. § 1983, a statute enacted in 1871 to enforce the Fourteenth Amendment. After the Civil War, recalcitrant southerners, acting through groups like the Ku Klux Klan, intimidated the freedmen and their white supporters, organized lynch mobs, burned houses, and, in general, attempted to restore the old order. The statute authorizes a cause of action against “[e]very person” who, acting “under color of” state law, violates constitutional rights.2 Professor Shapo went on to recount the legislative history of § 1983 and the relevant case law over the next nine decades.3

Interestingly, the Supreme Court rarely addressed § 1983 issues during that ninety-year period.4 Few cases were brought under the statute,5 and lower courts typically gave it a limited reach. When lower courts did consider § 1983 claims, they mainly read “under color of” as a requirement that the plaintiff show that state law authorized the violation, so that the availability of a state remedy would thwart the plaintiff’s effort to obtain access to federal court.6 Under this interpretation, the application of a statute that denies the right to vote to African Americans would be a § 1983 violation, whereas police brutality that violates state law would not.

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