CONSTITUTIONAL TORTS: SUING THE GOVERNMENT, PART I

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The Evolution of Federal Civil Rights Enforcement: Form Reconstruction to Modern Litigation

The modern framework of civil rights litigation emerged from the tumultuous period following the Civil War, when the United States confronted an unprecedented challenge: incorporating four million newly emancipated Black Americans into the nation’s legal and political framework while protecting them from pervasive violence. See Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (1988). This transformative period produced constitutional amendments and statutory innovations that would eventually become powerful tools for civil rights enforcement, though their effectiveness would first lie dormant for nearly a century.

The Thirteenth Amendment’s ratification in 1865 formally abolished slavery, but this constitutional guarantee alone proved insufficient to secure meaningful citizenship rights or physical safety for formerly enslaved people. Congress responded by enacting the Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981-1982), which declared all persons born in the United States to be citizens and guaranteed their fundamental rights to contract, own property, and access the judicial system. See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863 (1986). Despite this legislative breakthrough, state and local authorities frequently declined to enforce these newly established rights, highlighting the need for stronger federal protections.

The Fourteenth Amendment’s ratification in 1868 constitutionalized the principles of equal protection and due process, reflecting Congress’s recognition that federal authority must supersede state resistance to protect the rights of Black citizens. When violent organizations like the Ku Klux Klan systematically terrorized Black communities and their allies to subvert Reconstruction, Congress enacted the Enforcement Acts, including the Civil Rights Act of 1871, ch. 22, 17 Stat. 13 (codified as amended at 42 U.S.C. § 1983). Section 1983 created a federal cause of action against state actors who violated constitutional rights, establishing what scholars have termed a “federal constitutional tort.” See Monroe v. Pape, 365 U.S. 167 (1961); see also Edward L. Rubin, The Warren Court, Civil Rights, and Modern Constitutional Theory, 103 Yale L.J. 2131 (1994).

The Supreme Court’s jurisprudence in the late nineteenth century significantly curtailed this ambitious program of federal oversight. In the Slaughter-House Cases, 83 U.S. 36 (1873), the Court severely restricted the Fourteenth Amendment’s Privileges or Immunities Clause, limiting federal power to address state-level discrimination. United States v. Cruikshank, 92 U.S. 542 (1876), further weakened federal authority by holding that the Fourteenth Amendment did not reach private conduct, even when organized violence targeted Black citizens’ constitutional rights. The Civil Rights Cases, 109 U.S. 3 (1883), struck down the Civil Rights Act of 1875’s public accommodations provisions, exemplifying what legal historian Michael Les Benedict has called the Court’s “conservative constitutionalism” during this period.

These judicial constraints, combined with the withdrawal of federal troops from the South and the end of Reconstruction, effectively neutralized § 1983’s enforcement mechanism. Courts routinely dismissed constitutional claims against state actors, citing federalism concerns or adopting narrow interpretations of the Fourteenth Amendment’s reach. As C. Vann Woodward documented in The Strange Career of Jim Crow (1955), this judicial retrenchment enabled the entrenchment of Jim Crow laws, widespread disenfranchisement, and systematic racial subordination throughout the South.

The Reconstruction-era framework nevertheless planted seeds that would flourish during the civil rights revolution of the mid-twentieth century. The fundamental principle that individuals could seek federal judicial intervention against state officials who violated constitutional rights remained embedded in American law through § 1983. When the Warren Court embraced a more expansive vision of civil rights enforcement, epitomized by Monroe v. Pape’s revival of § 1983 litigation, it built upon this dormant statutory foundation. See Owen M. Fiss, The Civil Rights Injunction (1978).

This historical arc demonstrates how legislative innovations during Reconstruction created vital tools for civil rights enforcement that would later prove instrumental in advancing racial justice, albeit after decades of suppression. The original congressional vision of meaningful federal remedies for constitutional violations finally gained practical force almost a century after § 1983’s enactment, illustrating both the transformative potential and inherent limitations of legal reform in advancing civil rights. See Derrick A. Bell, Jr., Race, Racism, and American Law (6th ed. 2008).​​​​​​​​​​​​​​​​

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