Why the History of Section 1983 Helps to Understand "Black Lives Matter"

Reconstruction after the Civil War
The Civil War ended in 1865. In the decade that followed, Reconstruction was the political revolution that attempted to restructure the legal system to reflect the results of the war. The U.S. Constitution was amended to free the enslaved (Thirteenth Amendment, ratified 1865), to guarantee equal protection and due process (Fourteenth Amendment, ratified 1868), and to protect the right to vote “regardless of race, color, or previous condition of servitude” (Fifteenth Amendment, ratified 1870).

During the decade of Reconstruction, African American men voted and were elected to political office. Professor Eric Foner elaborates: “Although whites generally retained political control, the fact that well over six hundred blacks, the majority former slaves, served as legislators represented a stunning change in American politics.” Eric Foner, A Short History of Reconstruction 151 (Harper Perennial 1990). The potential political clout of African Americans can be appreciated from the numbers. In 1870, the black population of South Carolina was 416,000 while the white population was 290,000; in fact, “blacks formed a majority in twenty of the state’s thirty-one counties.” Philip Dray, Capitol Men: The Epic Story of Reconstruction Through the Lives of the First Black Congressmen 79 (Houghton Mifflin Co. 2008).

Resistance in Former Confederate States
Former Confederates violently resisted the political changes following the Union victory in the Civil War. “Emancipation, and then the appearance of black federal troops in the conquered South, had been offense enough; when, under the terms of congressional Reconstruction, men of color began to vote, win elections, and wield political authority, the patience of Southerners was pushed to its limit.” Id. at ix.

Starting in roughly 1866, white resisters began organizing themselves into groups such as the Ku Klux Klan to terrorize the newly freed slaves and freedman. The Klan struck in nighttime raids on African Americans’ homes, armed with guns, knives, whips, nooses, and fire. They often wore disguises. The Klan targeted community and political leaders, their families, and their white Republican supporters.

A congressional report published in 1872 summarized the spread of groups such as the Ku Klux Klan and their political purposes. Report of the Joint Select Committee to Inquire into the Condition of Affairs in the Late Insurrectionary States, 42d Congress, 2d Session, Report No. 41, Vol. 1, at 82–99 (1872).

The Congressional report explained that former Confederates organized the Klan after the Thirteenth Amendment freed the slaves. When the Fourteenth Amendment “confer[ed] citizenship and its rights and privileges upon the negro, the contest became still more bitter.” The Fifteenth Amendment “presented the colored man clothed with freedom, citizenship, and the ballot.” Id.

The congressional report explained that the Klan and similar groups violently attacked those who attempted to prosecute “the murderers of colored men,” who opposed the Klan, who “exercis[ed] political rights,” and who taught African American children. Id. The Klan “destroyed school-houses and drove away school-teachers” [and] “committed murders, whippings, and outrages.” Id. The congressional report explained that the Klan was a political organization whose purpose is “to oppose the [13th, 14th, and 15th] amendments to the Constitution [and] to have a white man’s government.” Id.

Section 1983 as a Congressional Response to Klan Resistance
Congress enacted 42 U.S.C. § 1983 as part of its response to the former Confederates’ violent resistance to Reconstruction. The legislators who enacted the Ku Klux Klan Act of which section 1983 was one part “were concerned about a widespread outbreak of violence, principally fostered by an organization of marauders . . . [and] exacerbated by the relative inaction of state and local governments. . . . The statute was aimed at a situation which bordered on anarchy.” Marshall S. Shapo, ”Constitutional Tort: Monroe v. Pape, and the Frontiers Beyond,” 60 Nw. U. L. Rev. 277, 280 (1965).

The Supreme Court summarized the historical conditions that led Congress to protect the new federal rights of citizens:

The specific historical catalyst for the [statute] was the campaign of violence and deception in the South, fomented by the Ku Klux Klan, which was denying decent citizens their civil and political rights. . . . The debates on the Act chronicle the alarming insecurity of life, liberty, and property in the Southern States, and the refuge that local authorities extended to the authors of these outrageous incidents.

Wilson v. Garcia, 471 U.S. 261, 276–77 (1985). Congress intended section 1983 to be a vehicle to permit individual citizens to protect their new federal rights from violations by state and local government, the Supreme Court reasoned. “The very purpose of Section 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights—to protect the people from unconstitutional action under color of state law.” Mitchum v. Foster, 407 U.S. 225, 239–42 (1972).        

Reconstruction Ended but Racial Violence Did Not
Reconstruction ended in 1876. But violence against African Americans continued. The Equal Justice Initiative “documented 4075 racial terror lynchings in twelve Southern states between the end of Reconstruction in 1877 and 1950.” Lynching in America: Confronting the Legacy of Racial Terror 5 (2d Ed. 2015). According to the Equal Justice Initiative, “lynchings fueled the mass migration of millions of black people from the South into urban ghettos in the North and West throughout the first half of the twentieth century.” Id. at 3.

How Section 1983 History Helps Grapple with the Present
So how does this violent history help me understand the “Black Lives Matter” movement? Section 1983 was congressional recognition that Black Lives Matter. Obviously today’s conditions are nowhere near the insecurity of African American life, liberty, and property in the post-Civil War South. But history matters. I think looking at the racial violence in our country’s past can help to better understand the physical vulnerability felt by black people in our country’s present.

My son is 19, lives in Philadelphia, plays basketball, listens to rap music, and wears hoodies and baggy jeans with his boxers showing. He hangs out with friends at night on downtown streets. He takes buses and the subway. I worry about my son’s safety for many reasons—but I do not worry that my son will be injured by police.

Not all mothers of 19-year-old boys assume that their sons will be safe hanging out on Philadelphia streets. The mother of my son’s friend would not let her son go to Philadelphia’s crowded 4th of July celebration—unless my son went with him. She worried her son would not be safe unless he was with a white person.

My son is white. Her son is black.

It is not just violence; it is also dignity. Another of my son’s African American friends was stopped by a Philadelphia police officer on his walk home from school. Why? My son’s friend did not know. The police officer frisked him, let him go, and told him to pull up his pants. The young man never learned why the police officer stopped him from walking from the bus stop to his house.

I have learned that many—if not most—parents of black sons have “the talk” with their sons, warning them how to behave if they are stopped by police. The specific content of “the talk” varies, but the underlying idea is the same: Be wary, be respectful, do not give police any excuse to injure you, keep your hands where the police can see them, do not touch any police officer, and do not get into an argument with police. The ACLU website offers specific guidance on your rights if stopped by police.

I have never had that talk with my 19-year-old son. I do not expect my son to be stopped by police. By contrast, one of my law students, who is black, told me that during his three years of law school, police had stopped him while driving 24 times. Another black young man, a baker, proudly told me that never once in his life had he been in handcuffs. I registered the shock on his face when I responded that no one I know has ever been in handcuffs.

As a lawyer who represented the City of Philadelphia for seven years, including defending police in 42 U.S.C. Section 1983 litigation, I know how much good police do. I know that accusations against police often are groundless. As a clinical law professor who authored a textbook on section 1983 litigation, and teaches this law, I also appreciate how the historical conditions that motivated Congress to enact this statute in 1871 can influence our understanding of our communities today. That violent American history, and its political context, gives insight into the contemporary feelings of vulnerability of young black people growing up in the U.S. today. As James Baldwin said, “History is not the past. It is the present. We carry our history with us. We are our history.”

_{Sarah E. Ricks, clinical professor of law and co-director of the Pro Bono Research Project, Rutgers Law School, is the author of Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2d Ed. 2015).}

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