A list of candidate statutes was generated which, surprisingly, did not include 42 U.S.C. 1983 which provided the cause of action in Brown v. Board of Education, and the other key fights of the civil rights movement. That reminded me of Harry Blackmun's impassioned defense of the Civil Rights Act of 1871: Section 1983 and federal protection of individual rights--will the statute remain alive or fade away? 60 New York University Law Review, 1 (1985). We know the answer now: they'll keep it - and use it to declare that race-conscious remedies are impermissible.
That of course confirms that 42 USC 1983 itself is untouchable.
But I prefer the Blackmun vision of the statute and its role to the race-blind conservatism of Anthony Kennedy whose sincerity I do not doubt, and whose reasoning I do not accept. Here's Harry:
"It is no reflection on the current good faith of state government and state courts to observe that history is not a one-way street. While we all can work to prevent a return to the judicial indifference and paralysis of the past, none of us can guarantee that the day will not return when a litigant who cannot vindicate his constitutional rights in federal court will not be able to vindicate them at all.
If that day should come, it will be far harder to reconstruct a statutory remedy that has been judicially interred or legislatively undone in the meantime than it would be to resort to a remedy that has been intact and working in the intervening years. In short, once we restrict the role of federal courts in protecting constitutional rights, we may find ourselves hard pressed to recover what has been given up.
In making this argument, I suppose that I am relying in part on the symbolic importance of § 1983. The symbolism that I have in mind, and the symbolism that § 1983 has come to possess for those whose rights depend on it, is not the symbolism the statute bore when it was enacted in 1871. Then § 1983 was part and parcel of the Radical Republican assault on the ashes of the Old South.
Today, § 1983 properly stands for something different -- for the commitment of our society to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful. When the Fourteenth Amendment became part of the Constitution, it committed this Nation to an order in which all governments, state as well as federal, were bound to respect the fundamental rights of individuals. That commitment, too, is a part of "Our Federalism," no less than the values of state autonomy that the critics of § 1983 so passionately invoke.
One might well ask, rhetorically, whether § 1983 could be enacted in today's political climate, or, indeed, whether we dare repeal it. What a vibrant and exciting old statute it is. As Edmond Cahn so aptly observed, "[F]reedom is not free." Whatever is the fate of § 1983 in the future, I do hope that it survives both as a symbol and as a working mechanism for all of us to protect the constitutional liberties we treasure."
The statute is now embedded into our constitutional structure, because it expresses a deeply held tenet of the American people - that the courts must provide a remedy, that one who violates "any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
