I received a long and thoughtful response to my post last month about the codified text of 42 U.S.C. 1983, from two lawyers at the Institute for Justice, Patrick Jaicomo and Daniel Nelson. I will reproduce it in full here (it continues after the break).
In a post last month, Professor William Baude joined a growing body of lawyers, judges, and commentators who have come upon a long-overlooked yet "game-changing" clause in the original text of 42 U.S.C. Section 1983, the federal statute which authorizes civil rights lawsuits against state officials. This clause, it turns out, shatters the foundation for one of today's rightfully most criticized legal doctrines: qualified immunity.
The original text of Section 1983 proclaimed, in unequivocal terms, that state officials who had violated someone's rights would be liable under federal law, "any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding." In other words, this Notwithstanding Clause took all state-law defenses, including qualified immunity, completely off the table. But just three years after Section 1983 was passed, the Notwithstanding Clause was clipped for space, as compilers organized federal law into the Revised Statutes of 1874.
Because the language was dropped from Section 1983 when the statute was reworded, Baude wonders if the Notwithstanding Clause is relevant today. It absolutely is.
