Over the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten and forced to seek refuge in swamps. The terrorists were often state actors or respected members of society who claimed to engage in savagery for self-defense and community protection. And state courts were unable or unwilling to prosecute the crimes.
Congress listened and did something else extraordinary. For the first time in American history, Congress interposed federal courts between the states and their citizens as guardians of federal constitutional rights. Through the Ku Klux Klan Act of 1871, which includes what is now codified as 42 U.S.C. § 1983, Congress rejected the proposition that the federal government had no power to intercede when state officials violated the federal constitution. Section 1983 provides a federal remedy for constitutional violations committed by state actors. The text is plain: Any state actor who violates the federal constitutional or statutory rights of any U.S. citizen “shall be liable to the party injured in an action at law.” But the Supreme Court of the United States has refused to enforce the statute as written. The Court instead invented the doctrine of qualified immunity that shields state actors from liability under Section 1983 unless victims can identify prior precedent where a state actor violated federal rights in a nearly identical manner.
With the U.S. Supreme Court’s blessing, federal courts have granted qualified immunity to state officials who violate federal rights in increasingly depraved and unreasonable ways. This Article demonstrates that the Supreme Court permits the very evil that Section 1983 was designed to end. This Article does so by reviewing the painful narratives of the courageous Black people who testified before Congress in 1871. The Ku Klux Klan Hearings were the United States’ closest attempt at truth and reconciliation in the aftermath of slavery and the terror that followed. The testimony is replete with examples of a particular form of violence—assaults committed by state actors that local governments were unable or unwilling to remedy—which Congress specifically sought to rectify through Section 1983. And it is this precise form of violence that the Court permits through its expansive application of qualified immunity.