Resurrecting the Equal Protection Clause Through the Ku Klux Klan Act of 1871
21 Pages Posted: 24 Apr 2024
Date Written: April 15, 2024
Abstract
In 1998, Justice Scalia defended the Supreme Court’s notoriously ahistorical approach to qualified immunity on the grounds that it was a corrective to the Court’s similarly ahistorical approach to interpreting § 1983 itself, as embodied in Monroe v. Pape. In more recent years, Justice Thomas has similarly floated the idea that the Court’s understanding of § 1983 is incorrect, and that whatever the Court does with qualified immunity should be accompanied by a reevaluation of Monroe. As the Court careens towards a wholesale reevaluation of its civil rights jurisprudence, this Essay seeks to put on the brakes, using the enactment debates of the Klan Act and the Fourteenth Amendment to provide historical evidence that the notion of “equal protection” was, in important respects, significantly broader than the Supreme Court has understood it.
This Essay first argues that the Equal Protection Clause was understood by its framers to remedy (1) discriminatory state laws; (2) discriminatory enforcement of neutral laws; and (3) private acts of racial violence that were not prosecuted by state authorities. It then considers three Klan Act provisions that are still in effect and uses the enactment debates during the Forty-Second Congress to show how each of these provisions sought to implement the Equal Protection Clause’s guarantees. The Essay first hypothesizes that Section 1 of the Klan Act –– what is now § 1983 –– was passed, inter alia, to remedy racially discriminatory state laws, as well as racially discriminatory enforcement of neutral laws by state officers. It then looks to Sections 2 and 6 of the Klan Act, which contained a damages action for private civil conspiracy and negligence in knowing about the existence of such a conspiracy and permitting it to occur, respectively. The Essay hypothesizes that these provisions worked together to allow recovery against private perpetrators of hate crimes in situations where states refused to enforce their own laws. In each section, the Essay addresses potential issues squaring the historical framework with more recent caselaw (especially involving the state action doctrine) and concludes that very little stands in the way of implementing it. Finally, using incarcerated individuals as a case study, the Essay explains how the historical framework might be useful to modern civil rights plaintiffs and attorneys bringing civil rights claims before originalist judges.
Keywords: civil rights law, constitutional law, statutory interpretation, prison litigation, civil rights litigation, section 1983, state action, reconstruction originalism, originalism
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