Debates on Judicial Immunity Before Passing the KKK Act of 1871

In my previous article, we talked about criminal consequences for civil rights violations under the Civil Rights Act of 1866, now known as 18 U.S.C. § 242. In today’s article, we will talk about the civil consequences for depravation for civil rights violations under the KKK Act of 1871, now known as 42 U.S.C. § 1983.

Congress modeled Section 1983 after the Civil Rights Act of 1866. This statute that refused to provide any official immunities because that would “place[] officials above the law.”  Congress viewed official immunities as akin to the idea “that the King can do no wrong.” 

The model for the KKK Act of 1871

Representative Samuel Shellabarger, the Congressman who sponsored the KKK Act of 1871. He explicitly based it on the language used in the Civil Rights Act of 1866:

The model for [section 1 of the KKK Act of 1871] will be found in the second section of the act of April 9, 1866, known as the “civil rights act.” That section provides a criminal proceeding in identically the same case as this one provides a civil remedy for, except that the deprivation under color of State law must, under the civil rights act, have been on account of race, color, or former slavery. This section of this bill, on the same state of facts, not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship.

In other words, section 1 of the KKK Act of 1871 was meant to provide a civil remedy for constitutional violations. Section 2 of the Civil Rights Act of 1866 focused on criminal penalties. Also, section 1 of the KKK Act of 1871 was meant to be more expansive in coverage of constitutional deprivations than section 2 of the Civil Rights Act of 1866. This is because it did not include a willfulness element.

Congressional debates against the KKK Act of 1871

Just like congressional debates about section 2 of the Civil Rights Act of 1866, congressional debates about section 1 of the KKK Act of 1871 contemplated the loss of judicial immunity. Except here they focused on liability in civil suits rather than exposure to criminal prosecution. Representative William Evans Arthur of Kentucky critiqued section 1 for “overrid[ing] the reserved powers of the States” and argued that “[h]itherto, in all the history of this country and of England, no judge or court has been held liable, civilly or criminally, for judicial acts . . . .”

Though Representative Arthur acknowledged that “[w]illfulness and corruption” could “create[] a liability” for judges, he criticized section 1 for going too far, stating:

Under the provisions of this section every judge in the State court . . . will enter upon and pursue the call of official duty with the sword of Damocles suspended over him by a silken thread, and bent upon him the scowl of unbridled power, the forerunner of the impending wrath, which is gathering itself to burst upon its victim.

Representative Joseph Horace Lewis of Kentucky also critiqued the KKK Act of 1871 for “put[ting] in jeopardy the officers of the States, though in the conscientious discharge of their duties,” and singled out section 1 because “in certain cases, the judge of a State court, though acting under oath of office, is made liable to a suit in the Federal court and subject to damages for his decision against a suitor, however honest and conscientious that decision may be.”

Proponents of the KKK Act of 1871

Proponents of the KKK Act of 1871 similarly contemplated the role of judges in addressing — or failing to address — the violence perpetrated throughout the South by the Ku Klux Klan. Representative Joseph Hayne Rainey submitted into the Congressional Record an article describing the murder of “one of the most inoffensive” people he knew. He said that even though “[t]he judge of [that] circuit [was] sitting on his bench” and the “machinery of justice [was] in working order,” “[t]he courts of justice seem[ed] paralyzed” to address the murder because the victim was a Republican.

Similarly, other representatives decried “the failure and complicity of the state courts in the terror of the post⁠–Civil War South,”. Representative David Perley Lowe of Kansas stated that the “records of the [state] tribunals are searched in vain for any evidence of effective redress [of federally secured rights]”. Representative Aaron Fyfe Perry of Ohio declaring that “judges, having ears to hear, hear not.”

As the sponsor of the KKK Act of 1871 made clear, the text of 42 U.S.C. § 1983 was explicitly modeled on the text of 18 U.S.C. § 242.  Moreover, this provision for civil liability was intended to be even more expansive than 18 U.S.C. § 242. It omitted in 42 U.S.C. § 1983 the requirement in 18 U.S.C. § 242 that violations be willful. And, just as members of Congress assumed that 18 U.S.C. § 242 would expose judges to criminal liability, it was later affirmed by the Supreme Court, members of Congress debating the KKK Act of 1871 also assumed that 42 U.S.C. § 1983 would expose judges to civil liability.

Promoting systemic change

Section 1983 sought to prevent and deter constitutional violations. It sought to promote systemic change by holding governments and their agents accountable in a court of law to those they victimized. The legislators who enacted Section 1983 understood that it would be interpreted broadly to promote its goal of redressing government abuse of power: “This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed.”

The members of the 42nd congress insisted that “whoever interferes” with constitutionally guaranteed rights “though it may be done under state law or state regulation, shall not be exempt from responsibility to the party injured when he brings suit for redress either at law or in equity.” 

Section 1983, like the 1866 Act, did not provide any immunities because congress refused to “place officials above the law.” 

That the Act provided a broad remedy for constitutional violations by state and local officials. They were unqualified by any immunities as was understood by both proponents and opponents of Section 1983.  In “the language of the bill” Senator Allen Thurman stressed, “there is no limitation whatsoever unpin the terms that are employed, ….they are as comprehensive as can be used”. As Senator Thurman bemoaned, the state judges had already faced federal criminal charges for violating the Civil Rights Act of 1866.  

Exemption Clauses

Opponents of the 1871 legislation asked “where is the clause that exempts” state legislators and other government officials from the new federal cause of action Section 1983 created. These pleas were met with a stony silence. The members of the 42nd Congress refused to write into the law any exception to the cause of action Section 1983 afforded. This was to ensure respect for constitutional rights and state accountability. Pervasive state violence and the complete breakdown of justice in the South demanded a bold new set of remedies. This was to vindicate fundamental rights and prevent the subjugation of Black citizens. Section 1983 sought to hold state lawbreakers to account, not permit them to violate fundamental rights with impunity.

In conclusion, in their debates, they specifically addressed judges no longer having this immunity.  They never exempted judges from the law.

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