Archive for October 2009
A Section 1983 Primer (1): History, Purposes and Scope
This post is intended primarily for those lawyers, law students and members of the public who are not very familiar with 42 U.S.C. section 1983. It is the first in an introductory series on section 1983 that I will occasionally post.
History and Purposes
At the outset, observe the very close connection between section 1983 and the Fourteenth Amendment.
Section 1 of the Fourteenth Amendment to the Constitution of the United States, ratified in 1868, declares that states may not abridge the privileges or immunities of citizens of the United States and sets out the protections of due process and equal protection for “any person,” none of which states (and local governments) may deprive or deny. Section 5 of the Fourteenth Amendment gives Congress the power to enforce section 1 by appropriate legislation.
Section 1983 was enacted in 1871 by the 42nd Congress pursuant to its section 5 power in order to enforce the Fourteenth Amendment. It effectively creates a Fourteenth Amendment action for damages (and for injunctive relief) against “Every person,” acting under color of state or local law, who deprives a person of his or her Fourteenth Amendment rights and thereby causes damage. As it turns out in Supreme Court case law, “Every person” includes state and local government officials as well as local governments themselves (but not states). Read the rest of this entry »
Brown v. Board of Education
Introduction
Brown v. Board of Education, 347 U.S. 483 (1954), is one of the great constitutional law cases and perhaps the most important Supreme Court decision of the 20th century. I want to describe how I approach the case in class and what I hope students will learn.
History
Brown cannot be understood in isolation from what preceded it: the history of slavery, the Civil War, the 13th, 14th and 15th Amendments and Jim Crow in the South as exemplified by Plessy v. Ferguson, 166 U.S. 537 (1896). In Plessy, the Court, over Justice Harlan’s prescient dissent, had upheld separate but equal for railroad cars, with far-reaching implications for segregation generally.
Similarly, Brown cannot be understood apart from its own specific historical setting: victory over the racist Nazi regime in the Second World War, the rise of the Soviet Union, the integration of the American military, the urgent need for workers after the Second World War and important demographic changes.
Finally, there is an obvious moral dimension to Brown, although the Court did not expressly ground Brown on moral considerations.
In this connection, I raise the question in class whether the Court in Brown was leading the nation, whether it was following the nation or some combination thereof. I also disabuse my students of the notion that the Court as an institution was particularly heroic in Brown, since its own late 19th and 20th century decisions enabled and encouraged the South to continue the segregationist policies that the Court in Brown finally began to dismantle. Read the rest of this entry »
My Position on Supervisory Liability after Iqbal
Coming Full Circle
My very first post–on August 19–involved the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and its implications for supervisory liability under section 1983. I have since worked through the relevant issues and conclude that the Court got supervisory liability right, even though its reasoning was seriously deficient.
What follows is an abstract of an article setting out my position that will be published in March 2010 in an Iqbal symposium issue of Lewis & Clark Law Review. The entire article is currently available for downloading on the Legal Research Network of SSRN and also on this link: http://works.bepress.com/sheldon_nahmod/
The Dormant Commerce Clause
Background
Dormant Commerce Clause issues arise out of Congressional silence about the particular subject matter being regulated by the state to the possible detriment of interstate commerce. Since the Commerce Clause confers power only on Congress to regulate interstate commerce, one wonders why there should even be a so-called “dormant” Commerce Clause enforceable by the judiciary.
There are two extreme positions possible as to the Court’s role. At one extreme, the Court could stay out of it altogether and leave it to Congress to regulate in the area and possibly preempt. A disadvantage of this position is that Congress may never get around to many state statutes that adversely affect interstate commerce. At the other extreme, the Court could keep the playing field clear for future Congressional regulation by striking down every state statute this is shown to adversely affect interstate commerce, regardless of its merits, on the theory that Congressional power over interstate commerce is exclusive. A disadvantage of this position is that it may amount to federal judicial interference with a state’s legitimate health and safety concerns as well as undermine state experimentation, an important function of federalism.
As it turns out, the Court has staked out a middle position: it reviews challenged state statutes under the dormant Commerce Clause, upholding some and overturning others. This directly raises the question of the justifications for judicial intervention and the related question of what the standards of dormant Commerce Clause review should be. Thus, the dormant Commerce Clause provides an excellent opportunity for the teacher to review the purposes of the Commerce Clause and related federalism concerns, and to introduce in a preliminary way the Equal Protection Clause and its various levels of scrutiny, ranging from strict scrutiny to rational basis review. Read the rest of this entry »
Preempting Section 1983 Constitutional Claims: Fitzgerald v. Barnstable School Comm.
Background
It may surprise some readers to learn that there can be cases in which a federal statute is found to preempt § 1983 constitutional claims. This kind of case is different from those cases in which the issue is whether the violation of a federal statute is actionable under § 1983 as a “laws” claim. But one thing these two kinds of cases have in common is that express Congressional intent is dispositive. However–and this unfortunately is often the case–where Congress has not expressly stated its intent, it is left to the courts to discern from Congressional silence whether, in the one case, Congress intended to preempt § 1983 constitutional claims and, in the other case, whether Congress intended to allow a § 1983 “laws” claim for the violation of a particular federal statute.
A major Supreme Court decision addressing preemption of § 1983 constitutional claims is Smith v. Robinson, 468 U.S. 992 (1984), which held that Congress, when it enacted the Education of the Handicapped Act (EHA), intended to preempt § 1983 equal protection claims identical to statutory EHA claims. Congress responded to Smith in 1986 by amending the EHA to provide explicitly that parallel equal protection and other constitutional claims are not preempted by the EHA. In contrast to Smith, the Supreme Court in Fitzgerald v. Barnstable School Comm., 129 S. Ct. 788 (2009), addressed a similar preemption issue in connection with the effect of Title IX on § 1983 equal protection claims, but it ruled against preemption. [Note that Fitzgerald is the last of the five major 2008 Term Supreme Court § 1983 cases that I have blogged about]
