The Collapse of Constitutional Remedies by Aziz Z. Huq

Author:Aziz Z. Huq
Language: eng
Format: epub
Publisher: Oxford University Press
Published: 2021-02-15T00:00:00+00:00

The Rise of Remedies

The seeds for a comprehensive regime of constitutional remedies were laid by statute in the Civil War’s wake. As we saw in Chapter 2, the Radical Republican Congress of the 1860s passed a series of measures to expand access to the federal courts—understood at the time as an instrument of a federal policy for reconstructing the former Confederate states. Yet as the national commitment to Reconstruction sputtered and died, so too did the political and the judicial will to defend the individual rights of Black freedmen and their allies. Statutes enacted for that end were left as lonely relics, marooned without apparent purpose on the statute books. Two, in particular, would fall into desuetude only to spring back to life in the middle of the twentieth century.

The first important Reconstruction-era statute was enacted in response to postwar violence targeting former slaves. A mix of criminal prohibitions and civil actions, the 1871 Ku Klux Klan Act allowed for money-damages actions against state, but not federal, officials alleged to have violated the Constitution. Its key provision is now widely known as “Section 1983” after the place in the statute books where it can be found. Section 1983 allows a person to sue an official for damages if the defendant was acting “under color” of state (not federal) law.22 Sheriff Irwin should have been a plausible defendant because he was acting under state law when he arrested and then whipped Lula. But the Border Patrol agent Mesa would have been beyond the statute’s ken because the federal government paid his salary. Section 1983 was, however, rarely used in the late nineteenth and early twentieth centuries. One survey of its first sixty-five years found only nineteen reported decisions, including Lula Brawner’s.23

TheBrawner case provides an insight into why Section 1983 was so little used. Federal judges initially read the Constitution’s limitations on state actors exceedingly narrowly. They also held that the Bill of Rights located in the Constitution’s first nine amendments simply did not extend to the several states. New constitutional rights created by the 1868 Fourteenth Amendment were hence stingily doled out.24 At the same time, courts also took a pinched view of what counted as “under color” of law—as Brawner’s case once again illustrated. In an era when private and public violence often intermingled for the purpose of maintaining formal and informal racial hierarchy, the judicial effort to draw a distinction between them was an invitation to circumvent federal law’s protections.

The second important Reconstruction-era measure was an amendment to the 1789 Judiciary Act. This 1867 measure expanded the federal courts’ power to issue “the writ of habeas corpus.”25 Enacted little more than a year after the Thirteenth Amendment’s prohibition on slavery came into force, the 1867 law reached “any person restrained of his or her liberty.” Its sponsor in the House, Representative William Lawrence, described it as a “bill of the largest liberty.”26 His aspiration had some historical pedigree. An invention of English law, the habeas writ began as a

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