Jacob Harcar has posted The Original Meaning of Section 1983 and Official Immunity on SSRN. Here is the abstract:
Section 1983 is a federal statute that gives people the right to sue state officials who deprive them of their constitutional rights. But the Supreme Court has held that most state officials have some kind of immunity from suits for damages. In Tenney v. Brandhove (1951), the Supreme Court held that Congress did not intend to abrogate common law absolute legislative immunity when it enacted § 1 of the Ku Klux Klan Act of 1871 (today codified as amended at 42 U.S.C. § 1983). This holding has since become an unquestioned axiom of the Supreme Court’s § 1983 jurisprudence. Relying on this axiom, the Court has held that Congress also intended to preserve other official immunities available at common law, including absolute judicial immunity and qualified immunity for executive officials.
But Tenney was wrong. Both as a matter of original intent and original public meaning, § 1983 abrogated all common law official immunity defenses. Key to determining the original meaning of § 1983 is the statute upon which it was modeled—§ 2 of the Civil Rights Act of 1866 (today codified as amended at 18 U.S.C. § 242)—which provided criminal liability for similar acts. When other evidence of original meaning is evaluated in light of the context provided by § 242, it becomes clear that § 1983 was most likely originally understood to abrogate all common law official immunities, including legislative immunity. Though this might sound absurd in light of modern understandings of “Our Federalism,” an originalist understanding of federalism, informed by the changes made to our constitutional structure by the Reconstruction Amendments, if anything, cuts the other way.
Highly recommended.
