Our nation’s history on civil rights has been a story of slow and uneven but also unrelenting progress. Such progress has often been aided by influential pieces of legislation, such as the Civil Rights Act of 1871 or the Civil Rights Act of 1964 or constitutional amendments such as the Reconstruction Amendments. As we have sadly seen recently, these legal reforms did not end all bigotry in our nation, but they gave minorities the legal tools to defend their civil rights.
One of these tools was 42 U.S.C. 1983, enacted as part of the Civil Rights Act of 1871 by 56% of the House of Representatives, 70% of the Senate, and President Ulysses S. Grant. This federal law gave citizens the power to sue public officials who violated their civil rights for monetary damages. Said Representative David Lowe about the need for this legislation:
This law, imperfect as it was, became often the only form of relief for minorities. Unfortunately, the Supreme Court deemed it too burdensome, ruling in Harlow v. Fitzgerald that the “general costs of subjecting officials to the risks of trial” were more important than what was often the only tool minorities had for protecting their civil rights. The court’s expansion of the doctrine known as qualified immunity required that state officials enjoy near-complete immunity from civil suit.
Why has it been so hard to use Section 1983 to hold police officers accountable? Not because of a vote of the U.S. House, and not because of a vote of the Senate, and not because of an order from any president. This is the result of eight judges who decided they, not the overwhelming majority of the people’s representatives who passed the law, could balance the costs of litigation against your civil rights.
The results have been disastrous. As we have seen recently, the lack of accountability has resulted in excessive force and needless death.
The judges felt that Section 1983, one precious tool with which minorities could protect their civil rights, would lead to excessive litigation. But that was precisely the aim of the law — to use litigation to prevent civil rights abuses. If it was excessive, then that speaks more to the urgency for change than a need to protect civil rights violators from lawsuits.
What would have happened if these judges, rather than viewing themselves and engineers of American democracy and writing the law themselves, had deferred to the actual text of law? If, instead of writing new laws themselves, they had relied on their traditional role of interpreter, not creator, of laws? “Qualified immunity” would never have been created, or at least never expanded. Police officers and other officials would be held accountable for their violations of citizens’ constitutional rights.
As it is known in legal circles, “originalism,” or the idea that the Constitution’s original meaning is fixed and judges should interpret it and other laws according to their original public meaning, could have brought justice to minorities much sooner, allowing them to use the legal tools created by the Civil Rights Act of 1871 to protect their rights. Perhaps, it would have even prevented the horrors of the recent killings of George Floyd and other black people at the hands of excessively brutal police officers.
Many of my lawyer colleagues, often advocates for “living constitutionalism,” argue that judges should set aside the written text of the law and rely on their own whims and feelings of what the law should be because traditional methods of lawmaking are too slow for their liking and the law needs to “keep up” with society. Yet many of the greatest injustices in our nation’s history were aided by Supreme Court decisions that did not rely on the written text of the Constitution or federal statutes but reflected the judges’ views of what the law should be.
Consider two of the court’s most dreadful opinions. The Supreme Court held in Dred Scott v. Sandford that Congress had no power to outlaw slavery in the territories, ignoring the plain text of the Constitution and inserting their beliefs about the best way to resolve the slavery tensions in the country. In another deplorable decision, Korematsu v. United States, the court abandoned the Constitution’s written guarantees of due process and equal protection to intern American citizens of Japanese descent.
The court’s expansion of qualified immunity pales in comparison to those decisions, but it has one thing in common with them: Judges arrived at them by deeming themselves not judges but “philosopher-kings,” who place their own judgment above that of the people and their representatives. Just as in those decisions, the Supreme Court’s expansion of qualified immunity subverted the written text of the law in favor of their own judgments weighing optimal public policy. In doing so, the court gutted one of the best tools minorities had to protect their rights.
Unfortunately, this week, the Supreme Court declined to hear a number of cases that it could have used to limit or end qualified immunity. Nevertheless, as we consider the reforms we must enact to end police brutality, including several legislative proposals to repeal or amend the doctrine of qualified immunity, we must consider how to make change enduring and effective.
Our nation’s story has included the slow but steady expansion of full equality to more of its citizens. We should neither feel complacent in that achievement nor ignore it. But we should ensure that unelected judges do not stymie that progress by inserting their own opinions over the text of the reforms we pass, as the Supreme Court did with qualified immunity. The next set of civil liberties expansion must have meaning for it to bring real change.
Jacob Marco is a consultant for the Boston Consulting Group. He holds a J.D. from the University of Pennsylvania Law School and an MBA from the Wharton School of the University of Pennsylvania.
