Chapman v. Houston Welfare Rights Organization, 441 U.S. 600 (1979)

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring.

I join the Court’s opinion,{1} and agree that it is not necessary in these cases to decide the meaning of the phrase "Constitution and laws" in 42 U.S.C. § 1983. See ante at 616. MR. JUSTICE WHITE has taken a contrary view, however, and has concluded that, because the statute now codified as § 1983 includes the words "and laws," it provides a private cause of action for the deprivation, under color of state law, of any federal statutory right. Anyone who ventures into the thicket of the legislative history of § 1983 quickly realizes that there is no clearly marked path to the correct interpretation of this statute. Yet there is sufficient evidence to indicate convincingly that the phrase "and laws" was intended as no more than a shorthand reference to the equal rights legislation enacted by Congress. Because I do not think MR. JUSTICE WHITE’s interpretation can survive careful examination of the legislative history of § 1983, I write separately.

I

Section 1983 provides a private cause of action for the deprivation, under color of state law, of "rights . . . secured by the Constitution and laws."{2} An examination of the genesis of this statute makes clear the hazard of viewing too expansively the statute’s broad reference to "laws." Pursuant to legislative direction, see Act of June 27, 1866, 14 Stat. 74, President Andrew Johnson appointed three distinguished jurists to constitute a commission to simplify, organize, and consolidate all federal statutes of a general and permanent nature. These revisers and their successors spent several years in producing the volume enacted by Congress as the Revised Statutes of 1874. See Dwan & Feidler, The Federal Statutes -- Their History and Use, 22 Minn.L.Rev. 1008, 1012-1015 (1938). Section 1983 first appeared in its present form as § 1979 of the Revised Statutes,{3} which, in turn, was derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13. It was in the 1874 revision that the words "and laws" were added.

The history of the revision makes abundantly clear that Congress did not intend the revision to alter the content of federal statutory law. The Act of Congress authorizing the revision discloses no warrant to do so. 14 tat. 74. In reporting to the House on the progress of their task, the revisers advised that, while some changes in the wording of federal statutes were necessary,

[e]very essential provision of the existing laws must be reproduced, with such additions only by the [revisers] as shall give to these provisions their intended effect.

Report of the Commissioners to Revise the Statutes of the United States, H.R. Misc. Doc. No. 31, 40th Cong., 3d Sess., 2 (1869). Before the work was approved by Congress, it was scrutinized, at the behest of a joint congressional committee, for nine months by Thomas Jefferson Durant, an attorney not involved in the initial drafting, for the express purpose of detecting changes and restoring the original meaning. See 2 Cong.Rec. 646 (1874) (remarks of Rep. Poland); id. at 129 (remarks of Rep. Butler); Dwan & Feidler, supra at 1013-1014. Thereafter, it was reviewed by both the House Committee on Revision of the Laws, see 2 Cong.Rec. 646 (1874) (remarks of Rep. Poland) and by the House itself in a series of special evening sessions, see infra at 638-639, for the purpose of making

such changes and amendments as [are] necessary to make [sure] that it will be an exact transcript, an exact reflex, of the existing statute law of the United States -- that there shall be nothing omitted and nothing changed.

2 Cong.Rec. 646 (1874) (remarks of Rep. Poland) (emphasis added). Members of Congress who urged enactment of the revision into positive law stated unequivocally that no substantive changes were intended. For example, Senator Conkling, chairman of the Senate Committee on the Revision of the Laws, in reporting the revision to the Senate, said:

[A]lthough phraseology, of course, has been changed, the aim throughout has been to preserve absolute identity of meaning, not to change the law in any particular, however minute, but to present . . . the law in all its parts as it was actually found to exist dispersed through seventeen volumes of statutes.

Id. at 4220.{4}

In spite of these efforts, it may have been inevitable in an undertaking of such magnitude that changes in the language of some statutes arguably would alter their meaning. When confronted with such changes, we should remember the

"familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers."

Muniz v. Homan, 422 U.S. 454, 469 (1975) (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892)). I do not foreclose the possibility that some statutory change attributable solely to the 1874 revision may be accepted at face value. See United States v. Sischo, 262 U.S. 165, 168-169 (1923). But certainly the better wisdom is that "an insertion [of language] in the Revised Statutes . . . is not lightly to be read as making a change. . . ." Ibid.

I therefore am unable to accept uncritically the view that, merely because the phrase "and laws" was inserted into the predecessor of § 1983 during the revision, that statute henceforth must be read as embracing all federal rights. The presence of this addition merely launches the inquiry into the legislative intent behind the present wording of § 1983.{5}

II

A

The history of § 1983 begins with the Civil Rights Act of 1866, 14 Stat. 27. Section 1 of the Act guaranteed all citizens of the United States

the same right . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property . . . as is enjoyed by white citizens.

Section 2 made it a misdemeanor for any person, acting under color of state law, to deprive another of the rights enumerated in § 1. Jurisdiction over the criminal actions described in § 2, as well as over civil actions to enforce the rights granted in § 1, was provided by § 3, which stated in part:

[T]he district courts of the United States . . . shall have . . . cognizance . . concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied . . . any of the rights secured to them by the first section of this act. . . .

The first three sections of the 1866 Act were the models for parts of two subsequent civil rights statutes. First, §§ 16 and 17 of the 1870 Civil Rights Act, 16 Stat 144, were copied, with some changes, directly from §§ 1 and 2 of the 1866 Act,{6} and § 18 stated that §§ 16 and 17 were to "be enforced according to the provisions of said act" -- i.e., the jurisdictional provisions of § 3 of the 1866 law.{7} Second, § 1 of the Civil Rights Act of 1871, 17 Stat. 13, known as the Ku Klux Klan Act, was modeled after § 2 of the 1866 law. Rather than providing for criminal liability, however, it granted a private civil cause of action; and in place of the enumerated rights of § 1 of the 1866 Act, it encompassed the deprivation, under color of state law, of "any rights, privileges, or immunities secured by the Constitution of the United States." Concurrent circuit and district court jurisdiction over these civil actions was to be governed by § 3 of the 1866 Act, which again was incorporated by reference. Section 1 of the 1871 Act is the direct ancestor of § 1983.

The statutes discussed above were among the civil rights and related jurisdictional provisions in force when the task of producing the Revised Statutes was commenced. Of immediate concern, of course, is § 1 of the 1871 Act, which became § 1979 of the Revised Statutes and, finally, 42 U.S.C. § 1983. As that statute came to the revisers, it extended only to deprivations, under color of state law, of rights "secured by the Constitution." As it left their hands, this phrase had been altered to read "secured by the Constitution and laws." The problem is to discover whether the revisers and the Congress that accepted their work intended, by the addition of the two words "and laws," greatly to expand the coverage of the statute to encompass every federal statutory right. See post at 654.

B

A primary source of information about the meaning of the Revised Statutes is a two-volume draft published by the revisers in 1872. Revision of the United States Statutes as Drafted by the Commissioners Appointed for that Purpose (1872) (hereinafter Draft). This Draft provides insight into the thinking of its authors in two ways: it contains marginal notations indicating the sources from which each section of the proposed text was derived, and it includes explanatory notes following some of the proposed provisions, discussing problems encountered by the revisers and justifying the use of particular word choices.{8}

As it appears in the Draft (and in the final text), § 1979 creates a cause of action for the deprivation of "rights . . . secured by the Constitution and laws." The only indication in the Draft concerning the language of § 1979 is the marginal notation showing that it was derived from § 1 of the 1871 Civil Rights Act. Although the revisers gave no direct explanation for their insertion of the reference to "laws," their reasons for that change are revealed by a close examination of similar modification made in the jurisdictional counterparts to § 1979

As part of their general scheme of organizing the federal statutes, the revisers consolidated all the jurisdictional provisions of the Statutes at Large in the "Judiciary" title of the revision. As noted above, § 3 of the 1866 Act had been relied upon by Congress to provide concurrent jurisdiction in the district and circuit courts for the civil actions authorized by § 1979. As each of these courts was dealt with in separate chapters in the "Judiciary" title, the jurisdictional authority of § 3 was written into two separate provisions. One was § 563(12), placed under the chapter dealing with the district courts; the counterpart in the chapter on circuit court jurisdiction was § 629(16).{9} Both sections mirrored closely the language of § 1979, and the marginal notations for each indicated that both were derived from precisely the same source.{10}

In spite of this identity of origin and purpose, these two jurisdictional provisions contained a difference in wording. Section 563(12) provided district court jurisdiction over civil actions brought to redress the deprivation, under color of state law, of rights secured by the Constitution, or "of any right secured by any law of the United States." Section 629(16), by contrast, contained, in place of the latter phrase, the words "of any right secured by any law providing for equal rights." Fortunately, in including a reference to laws in § 629(16), the revisers provided what they omitted in their drafts of § 563(12) and 1979: a detailed and lengthy note explaining their reasons for going beyond the language of the prior civil rights statutes. 1 Draft 359. This note not only makes explicit the meaning of the words "any law providing for equal rights," it discloses the correct interpretation of the analogous language in §§ 563(12) and 1979 as well.

As part of a larger argument justifying some of the differences in language between § 629(16) in the revision and § 3 of the 1866 Act,{11} the revisers’ note makes an important statement concerning the relationship between the broad language of § 1 of the 1871 Act, from which § 1979 was taken, and the earlier statutes providing for specifically enumerated rights:

It may have been the intention of Congress to provide, by [§ 1 of the 1871 Act], for all the cases of [the enumerated] deprivations mentioned in [§ 16 of] the previous act of 1870, and thus actually to supersede the indefinite provisions contained in that act.[{12}] But as it might perhaps be held that only such rights as are specifically secured by the Constitution, and not every right secured by a law authorized by the Constitution, were here intended, it is deemed safer to add a reference to the civil rights act.{13}

1 Draft 362. This passage reflects the revisers’ understanding that Congress intended by its reference in § 1 of the 1871 Act to "rights . . . secured by the Constitution" to make unlawful the deprivation under color of state law of any right enumerated in § 1 of the 1866 Act and § 16 of the 1870 Act. The revisers doubtless were aware that § 1 of the 1871 Act was intended by Congress as a legislative implementation of the first section of the Fourteenth Amendment, which, in turn, was intended to constitutionalize the enumerated rights of § 1 of the 1866 Act. See Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323, 1329-1334 (1952); tenBroek, Thirteenth Amendment to the Constitution of the United States -- Consummation to Abolition and Key to the Fourteenth Amendment, 39 Calif.L.Rev. 171, 200-202 (1951); ante at 617, and n. 34. They therefore believed that § 1 of the 1866 Act, to the extent it protected against deprivations under color of state law, was meant to be fully encompassed by the phrase "rights . . . secured by the Constitution" in § 1 of the 1871 Act. But realizing that the courts likely would read this phrase restrictively, it was "deemed safer" to add to "rights . . . secured by the Constitution," as it appeared in § 629(16), a second phrase -- "or . . . secured by any law providing for equal rights" -- as a shorthand reference to the civil rights legislation granting specified rights.{14}

Although § 563(12) refers generally to "any law of the United States," it is manifest that the revisers intended §§ 563(12) and 629(16) to be identical in scope. The two provisions were derived from precisely the same sources in the Statutes at Large, see n. 10, supra, and there is no indication whatsoever that, in separating the two, the revisers intended to give them different meanings. Indeed, in the explanatory note to § 629(16), the revisers made explicit their awareness that the problems confronting them with respect to circuit court jurisdiction applied equally to the district courts, since those two tribunals were to have identical concurrent jurisdiction over all matters to which § 629(16) extended. After explaining why § 3 of the 1866 Act, if taken literally, would greatly broaden federal jurisdiction, seen. 11, supra, the revisers stated:

[I]t can hardly be supposed that Congress designed not only to open the doors of the circuit courts to these parties without reference to the ordinary conditions of citizenship and amount in dispute, but, in their behalf, to convert the district courts into courts of general common law and equity jurisdiction. It seems to be a reasonable construction, therefore, that, instead of proposing an incidental but complete revolution in the character and functions of the district courts as a measure of relief to parties who are elsewhere denied certain rights, Congress intended only to give a remedy in direct redress of that deprivation, and to allow that remedy to be sought in the courts of the United States.

1 Draft 361 (emphasis added). It appears that two jurisdictional provisions were created simply because the revisers elected to write separate chapters for the district and circuit courts.

In light of these considerations, the difference in the wording of §§ 563(12) and 629(16) must be ascribed to oversight, rather than to an intent to give the former provision greater scope than the latter.{15} Having ascertained that §§ 563(12) and 629(16) have the same scope, one can conclude only that the more restrictive language of § 629(16) governs § 563(12) as well, as the former was given more care and deliberation, and its language more precisely reflects the express understanding of the revisers.{16} It is understandable, therefore, that, when the original jurisdiction of the circuit courts was eliminated in the Judicial Code of 1911, the more precisely drafted circuit court provision was chosen to replace the broader district court statute. It thus was § 629(16) that became 28 U.S.C. § 1343(3), a selection undoubtedly made by the drafters of the Judicial Code in recognition of the fact that this provision expresses more accurately the original intent of Congress than does § 563(12). See Note, 72 Colum.L.Rev. supra,n. 15, at 1423, and n. 152.

The fact that the revisers understood the words "any law" in § 563(12) to refer only to the equal rights laws enacted by Congress necessarily illuminates the meaning of the similar, contemporaneously drafted reference in § 1979. The legislative history shows unmistakably that the revisers drafted § 563(12) and 629(16) for the precise purpose of providing jurisdiction for actions brought under § 1979.{17} Just as the difference in wording between the two jurisdictional provisions is, in light of the historical evidence, not a persuasive reason for concluding that they differ in meaning, the variation between §§ 629(16) and 1979 does not justify a construction that gives the latter a vastly broader scope than its jurisdictional counterpart. Indeed, only recently, the Court decided in Examining Board v. Flores de Otero, 426 U.S. 572 (1976), that, despite an unexplained difference in the language of §§ 1979 and 629(16) that was introduced during the 1874 revision, these statutes must be construed as identical in scope.{18} 426 U.S. at 580-586. A similar approach to the language under scrutiny here is equally correct.

The explanatory note accompanying § 629(16) makes perfectly clear that the revisers attributed to Congress the understanding that the particularly described rights of §§ 1977 and 1978 were protected against deprivation under color of state law by the words "rights . . . secured by the Constitution" in § 1979. Out of an abundance of caution, however, a phrase was added to these words wherever they appeared. In § 629(16), to which particular attention was devoted, the addition was "or of any right secured by any law providing for equal rights." In § 563(12) it was less precise: "or of any right secured by any law." In § 1979, the relevant language became "secured by the Constitution and laws." Despite the variations between these phrases, I am fully persuaded that each was intended to express the same meaning that is explicitly attributed by the revisers to the text of § 629(16).{19} One might wish that the revisers had expressed themselves with greater precision, but, when viewed in the context of the purpose and history of this legislation, it becomes evident that the insertion by the revisers of "and laws" in § 1979 was intended to do no more than ensure that federal legislation providing specifically for equality of rights would be brought within the ambit of the civil action authorized by that statute.{20}

Indeed, any other conclusion is unsupportable. It would be remarkable if the same revisers who disavowed any intent to make substantive changes in federal law and drafted § 629(16) as the jurisdictional partner to § 1979 wold, without any comment whatsoever,{21} add language to § 1979 for the purpose of making its coverage markedly incongruent with that of § 629(16), at the same time expanding its scope far beyond that originally provided by Congress. Indeed, as an illustration of what they were confident Congress had not intended with the jurisdictional counterpart to § 1979, the revisers raised the specter of opening the federal courts to actions completely unrelated to the deprivation of civil rights. Seen. 11, supra. Yet MR. JUSTICE WHITE would hold that just such a result was accomplished when the words "and laws" quietly appeared in § 1979.

The underlying historical question, of course, is not simply what the revisers intended, but what Congress meant by the language of § 1979 as it finally was enacted. In light of Congress’ clearly expressed purpose not to alter the meaning of prior law, seePart I, supra, it cannot be argued, absent some indication to the contrary, that Congress intended "and laws" to mean anything other than what was understood by the revisers, as shown above.

Nor was Congress merely silent on this issue. The bill to enact the revision into positive law received considerable attention in the House, where two special night sessions were convened each week for as long as necessary to allow all Members wishing to scrutinize the bill to do so until the entire document had been reviewed.{22} See 2 Cong.Rec. 646-650 (1874). During these meetings, many amendments were adopted, see, e.g., id. at 819-829, 849-858, 995-1001, 2709-2714, each on the understanding that it was restorative of the original meaning of the Statutes at Large, and not an amendment to existing law. See id. at 647-648 (remarks of Rep. Poland). During one of these sessions, Representative Lawrence observed that the work of revision necessarily required changes in the language of the original statutes. He illustrated the method used by the revisers by inviting his colleagues to compare the original text of the very civil rights statutes at issue here with the corresponding text of the revision. Included in the statutes read verbatim were § 1 of the 1871 Act, which, of course, does not contain the reference to "laws," and the text of § 1979, which does. In the course of his remarks, Representative Lawrence said:

A comparison of . . . these will present a fair specimen of the manner in which the work has been done, and from these, all can judge of the accuracy of the translation.

2 Cong.Rec. at 827-828. The House was convened for the sole purpose of detecting language in the revision that changed the meaning of existing law. From the absence of any comment at this point in the session, one may infer that no one present thought that § 1979 would effect such a change.{23}

In spite of the unchallenged body of evidence to the contrary, MR. JUSTICE WHITE insists that § 1983 "was . . . expanded to encompass all statutory as well as constitutional rights." Post at 654. I find this conclusion to be completely at odds with the legislative history of the statute and its jurisdictional counterparts.{24}

III

The legislative history of §§ 1979, 629(16), and 563(12) notwithstanding, the opinion concurring in the judgment argues that the words "and laws" in § 1983 should be read broadly, because the Court has given such a construction to similar language appearing in 18 U.S.C. §§ 241 and 242. This assertion is undermined, however, by the history of the statutes in question.

Section 242 originated in § 2 of the 1866 Act. As noted supra at 627, § 2 made it a misdemeanor to deprive, under color of state law, any citizen of the rights specified in § 1 of that Act. Section 2 was repeated, with some modification, as § 17 of the 1870 Act. Section 17 made criminal the deprivation, under color of state law, of the rights enumerated in § 16.{25}

An entirely independent criminal provision of the 1870 Act, § 6, made a far broader sweep. It did not require that the conduct it proscribed be performed under color of state law, and it explicitly prohibited certain conduct intended to deprive a citizen of "any right or privilege granted or secured . . . by the Constitution or laws of the United States." (Emphasis added.){26} Significantly, this is the only statute discussed in this or MR. JUSTICE WHITE’s separate opinion in which the reference to statutory law as well as the phrase "rights secured by the Constitution" appears in the text originally drafted by Congress; in all other cases, the reference to "laws" originated in the revision. Section 6 is thus the only one of these statutes for which there is a substantial argument that Congress truly intended to cover all federal statutory law.

Sections 6 and 17 of the 1870 Act were included in the revision as §§ 5508 and 5510, respectively, and MR. JUSTICE WHITE relies on the fact that both emerged with language that, on its face, covered all rights secured by federal statutory law. While he may well be correct that the words "Constitution or laws" in § 5508 should be taken at face value, the evidence does not support the same conclusion with respect to § 5510.

In the 1872 Draft of the revision, § 5510 was written to provide for criminal sanctions against deprivations, under color of state law, "of any right secured or protected by section ___ of the Title CIVIL RIGHTS." 2 Draft 2627. Although no explanatory note accompanies this section, it is evident from the face of the text that the revisers were attempting to preserve the limited scope of § 17 of the 1870 Act by restricting its coverage to specifically enumerated rights. In the final version of the revision, the language had been changed, apparently by Mr. Durant,{27} see supra at 625, to punish deprivations of rights "secured . . . by the Constitution and laws."

In light of the historical explanation of the meaning of "Constitution and laws" in § 1979, it is not surprising that this term should have been substituted for the language used in the draft of § 5510. As we have seen, in other contexts, the appendage of "and laws" to "rights . . . secured by the Constitution" simply referred to the rights protected by the legislation enacted to provide for equal rights, as authorized by the recently adopted Amendments to the Constitution. Indeed, the House debates make explicit the fact that the change from the revisers’ draft of § 5510 to the text ultimately adopted was made simply to be certain that this criminal provision would encompass the rights covered by the existing civil rights statutes discussed at length in this opinion: § 1 of the 1866 Act, § 16 of the 1870 Act, and § 1 of the 1871 Act. See 2 Cong.Rec. 827-828 (1874) (remarks of Rep. Lawrence). There is no evidence that Congress intended § 5510 to cover all federal statutory law.{28}

Despite the apparent similarity of the language of 18 U.S.C. §§ 241 and 242, therefore, they are in fact very different in scope. There is solid historical justification for the view that § 241 "dealt with Federal rights and with all Federal rights, and protected them in the lump," United States v. Mosley, 238 U.S. 383, 387 (1915) (interpreting Rev.Stat. § 5508, currently 18 U.S.C. § 241), because the expansive language was put there by Congress itself. The same simply is not true of § 242. Considered in its historical context, the addition of "and laws" to this statute requires a much more modest reading. Even if there are dicta in our opinions to the effect that §§ 241 and 242 cover an identical class of deprivations of rights, such a construction of § 242 was not made with the benefit of the close historical scrutiny necessary to a proper understanding of this law.{29} I agree with MR. JUSTICE WHITE that "and laws" means the same thing in § 1983 as in § 242.{30} I am convinced, however, that he misconstrues the phrase in both instances.

IV

MR. JUSTICE WHITE states that he is "not disposed to repudiate" the dicta in some of our prior decisions. See post at 658. It is, of course, true that several decisions contain statements premised upon the assumption that § 1983 covers a broad range of federal statutory claims. E.g., Edelman v. Jordan, 415 U.S. 651, 675 (1974); Greenwood v. Peacock, 384 U.S. 808, 829-830 (1966). But that assumption has been made uncritically. Until these cases, no prior opinion of the Court or of a Justice thereof has undertaken a close examination of the pertinent legislative history of § 1983, including the work of the commissioners who drafted the Revised Statutes of 1874. Thus, there is nothing in the cases cited by MR. JUSTICE WHITE that precludes a fresh look at this question.

In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), decided just last Term, the Court was willing to go beyond confessing error in previous dicta. Indeed, the Court squarely overruled the holding in Monroe v. Pape, 365 U.S. 167 (1961), that municipalities are not "persons" for purposes of 1983, despite almost two decades of lower courts’ reliance upon Monroe and notwithstanding our exceptional reluctance to overrule our prior constructions of federal statutes. In a case such as this, where no square holdings have perpetuated our misapprehension of the meaning of § 1983, we should be the more willing to correct historical error.

In addition to the historical evidence of the intent of Congress and the revisers in enacting § 1983, there are weighty policy and pragmatic arguments in favor of the construction advanced by this opinion. It is by no means unusual for Congress to implement federal social programs in close cooperation with the States. The Social Security Act, which these cases allege was violated, is a good example of this pattern of cooperative federalism. If § 1983 provides a private cause of action for the infringement, under color of state law, of any federal right, then virtually every such program, together with the state officials who administer it, becomes subject to judicial oversight at the behest of a single citizen, even if such a dramatic expansion of federal court jurisdiction never would have been countenanced when these programs were adopted. To be sure, Congress could amend or repeal § 1983, or, as MR. JUSTICE WHITE concedes, post at 672, limit its application in particular cases. As we said in Monell v. New York City Dept. of Social Services, supra at 695, however, we should not "`place on the shoulders of Congress the burden of the Court’s own error’" (quoting Girouard v. United States, 328 U.S. 61, 70 (1946)). That problem is avoided if § 1983 is read, as it should be, as encompassing only rights secured by the Constitution and laws providing for equal rights.

1. I join MR. JUSTICE STEVENS opinion for the Court on the understanding that it draws no conclusions about the legislative history of 28 U.S.C. § 1343(3) beyond those necessary to support its rather narrow holding with respect to the scope of that statute. I do not necessarily agree with every observation in the Court’s opinion concerning the history of the post-Civil War civil rights legislation.

2. Title 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of 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.

3. Revised Stat. § 1979 is identical to 42 U.S.C. § 1983. For convenience, the former designation is used throughout most of this opinion.

4. Supporters in the House were equally emphatic in their assurances that no substantive changes were contained in the revision:

I desire to premise here that [the House Committee on Revision of the Laws] felt it their bounden duty not to allow, so far as they could ascertain, any change of the law. This embodies the law as it is. The temptation, of course, was very great, where a law seemed to be imperfect, to perfect it by the alteration of words or phrases, or to make some change. But that temptation has, so far as I know and believe, been resisted. We have not attempted to change the law, in a single word or letter, so as to make a different reading or different sense. All that has been done is to strike out the obsolete parts and to condense and consolidate and bring together statutes in pari materia; so that you have here, except insofar as it is human to err, the laws of the United States under which we now live.

2 Cong.Rec. 129 (1873) (remarks of Rep. Butler, introducing H.R. 1215).

[T]he committee have endeavored to have this revision a perfect reflex of the existing national statutes. We felt aware that, if anything was introduced by way of change into those statutes, it would be impossible that the thing should ever be carried through the House. In the multitude of matters that come before Congress for consideration, if we undertake to perfect and amend the whole body of the national statutes, there is an end of any expectation that the thing would ever be carried through either House of Congress, and therefore the committee have endeavored to eliminate from this everything that savors of change in the slightest degree of the existing statutes.

Ibid. (remarks of Rep. Poland).

5. Whatever value ordinarily lies in focusing exclusively on the "plain words [of the] civil rights legislation originating in the post-Civil War days," post at 649, is certainly eclipsed by the need to examine carefully alterations produced by the revisers, whose congressionally mandated task was to preserve, not to change, the meaning of the federal statutes.

6. Section 16 of the 1870 Act repeated only some of the rights enumerated in § 1 of the 1866 Act, but these were granted to "all persons within the jurisdiction of the United States," rather than, as in the 1866 Act, to "citizens of the United States." For a discussion of § 17 of the 1870 Act, seePart III, infra.

7. Section 18 of the 1870 Act also reenacted in full the 1866 Act, incorporating it by reference.

8. The final version of the Revised Statutes retains the marginal indications of the source of each section, but omits the explanatory notes. The final version contains limited cross-referencing; the Draft does not.

9. The title, chapter, and section numbers used in the 1872 Draft differ from those employed in the final version adopted by Congress. For the sake of simplicity, however, the provisions of the Draft will be discussed under the numbers ultimately assigned in the 1874 revision.

10. The marginal notations accompanying §§ 563(12) and 629(16) actually list three sources: § 1 of the 1871 Act, §§ 16 and 18 of the 1870 Act, and § 3 of the 1866 Act. As explained above, the relevant sections of the 1870 and 1871 legislation merely incorporated by reference the jurisdictional provisions originally written into § 3 of the 1866 Act. Section 3, then, was actually the sole source of both § 563(12) and § 629(16).

11. As shown above, see supra at 629-630, and n. 10, the terms of § 3 of the 1866 Act had been relied upon by Congress to provide jurisdiction for § 1 of the 1866 Act and § 16 of the 1870 Act, appearing in the revision as §§ 1977 and 1978, as well as for § 1979. The revisers therefore understood that the text in the revision representing § 3 had to provide jurisdiction over civil actions brought to enforce all of the rights covered by these three civil rights provisions.

Recognizing this, the revisers, in their note, first justify the language in § 629(16) extending jurisdiction only over suits brought to "redress the deprivation" of certain rights. Section 3 of the 1866 Act had referred to actions "affecting persons" who had been denied certain rights. The revisers reasoned that Congress could not have meant the latter phrase literally, as this would have created concurrent circuit and district court jurisdiction over any action whatsoever -- "for the recovery of lands, or on promissory notes, . . . or for the infringement of patent or copyrights," 1 Draft 361 -- by anyone who coincidentally had been denied his civil rights. The revisers therefore concluded that Congress meant to provide jurisdiction only over suits to redress the deprivation of civil rights.

The revisers sought support for this conclusion from the wording of § 1 of the 1871 Act, which, although it had incorporated by reference the "affecting persons who are denied" jurisdictional language of § 3 of the 1866 Act, provided for civil liability against anyone who subjected another to the "deprivation" of rights secured by the Constitution. Accordingly, the revisers inferred Congress’ wish that victims of civil rights violations should have access to the federal courts only to redress those violations, not to pursue all other kinds of litigation. It was at this point in their argument that the revisers made the statement quoted and discussed in the text below.

12. The statement that the provisions of § 16 of the 1870 Act are "indefinite" apparently is a reference to the fact that § 16 was less definite than § 1 of the 1871 Act in demonstrating a congressional intent to limit federal jurisdiction to the redress of actual deprivations of federal rights. Seen. 11, supra. Section 1 contained the definite phrase "deprivation of any rights . . . secured by the Constitution" (emphasis added), while § 16 merely stated that persons "shall have" certain rights.

13. It is unclear why the revisers said that "any law providing for equal rights" is a reference to § 16 of the 1870 Civil Rights Act, rather than to its predecessor, § 1 of the 1866 Act, or to civil rights Acts generally. The revisers’ immediate focus on § 16 is perhaps explained by their apparent conclusion that that provision had superseded § 1 of the 1866 Act with respect to those rights mentioned in both places. As noted supra at 628, and n. 6, § 16 introduced some changes in wording when it restated certain of the § 1 rights, and the § 16 version appeared in the revision as § 1977. Moreover, the marginal note to § 1977 lists only § 16 as its source.

The revisers did not believe that § 1 of the 1866 Act had been made entirely obsolete by § 16 of the 1870 Act, however, for § 1978 in the Draft consists of an enumeration of the § 1 rights not repeated in § 16: those dealing with the right to hold, purchase, and convey property. Accurately reflecting the text of § 1, these rights are extended only to "citizens of the United States." Seen. 6, supra. The marginal note identifies § 1 as the source of § 1978.

Whatever their reasons for referring only to § 16 of the 1870 Act as an illustration of the rights § 1979 was thought to protect against infringement by those acting under color of state law, it is evident from the context of their discussion that the revisers were concerned generally with civil rights legislation enumerating particular rights as authorized by the recently adopted Fourteenth Amendment, and perhaps by the Thirteenth and Fifteenth as well.

14. This demonstrates that MR. JUSTICE STEVENS opinion for the Court in these cases clearly is correct in its reading of the phrase "any Act of Congress providing for equal rights" in § 1343(3). These words were chosen carefully to refer to legislation providing for equality in the enjoyment of civil rights, and should not be construed more broadly than their plain meaning permits.

The revisers’ reference to "every right secured by a law authorized by the Constitution" does not in any way indicate their belief that § 629(16), by its reference to "any law providing for equal rights," would extend the courts’ jurisdiction to every suit involving statutory rights of every kind. On the contrary, the revisers’ note merely reflects their concern that, in general, courts would not interpret "rights secured by the Constitution" to extend to any federal statutory right. If this were the case, then even those rights originally created in the Civil Rights Acts -- rights which had been understood by Congress, when drafting § 1 of the 1871 Act, to be "constitutional rights" because of their unique relationship with § 1 of the Fourteenth Amendment -- would not have been within the scope of §§ 1979, 629(16), and 563(12), absent the added reference to statutory law.

15. See Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Colum.L.Rev. 1404, 1421-1423 (1972). The various subdivisions of the revision were assigned to different individuals for drafting. See Report of the Commissioners, S.Misc.Doc. No. 3, 42d Cong., 2d Sess., 1-2 (1871). It therefore is not surprising that different language should be used to express a single idea in statutes appearing in different parts of the revision.

In his separate opinion, MR. JUSTICE WHITE states that the Revised Statutes, in other instances, "provided different circuit and district court jurisdiction for causes which, prior to the revision, could be heard in either court." Post at 669 n. 46. Whether or not the differences between district and circuit court jurisdiction to which he adverts were intended by the revisers, the issue here is what the evidence reveals regarding this particular difference between §§ 563(12) and 629(16). As I have shown, the history indicates that these two statutes were intended to be identical in scope.

16. Accord, Note, 72 Colum.L.Rev. supra,n. 15, at 1421-1423.

17. In the final version of the revision, both § 563(12) and § 629(16) contain an explicit cross-reference to § 1979. In addition, the marginal notations in both the Draft and the final version of all three sections indicate the common origin discussed above. See supra at 629-630, and n. 10.

18. In Examining Board v. Flores de Otero, the Court concluded that the addition by the revisers of the words "or Territory" to § 1979, giving that statute application beyond the boundaries of the States of the Union, reflected the intent of Congress in light of such explicit evidence as Rev.Stat. § 1891, which provided:

The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect . . . in every Territory hereafter organized as elsewhere within the United States.

Despite the fact that no reference to Territories of the United States was added to § 563(12) or § 629(16), the Court concluded that these provisions were intended to be identical in scope with § 1979. (The Court’s opinion in Flores de Otero discusses these statutes mostly under their current section numbers, § 1983 and § 1343(3).)

19. Although many of the commentators who have grappled with the problem of reconciling or explaining the differences in the language of §§ 563(12), 629(16), and 1979 argue, largely on the basis of their view of judicial policy, that the plain language of § 629(16) should be ignored in favor of the apparently broader sweep of § 1979, they do not seriously contend that the two may differ in scope. E.g., Note, The Propriety of Granting a Federal Hearing for Statutorily Based Actions Under the Reconstruction-Era Civil Rights Acts: Blue v. Craig, 43 Geo.Wash.L.Rev. 1343, 1371-1373 (1975); Note, 72 Colum.L.Rev., supra,n. 15, at 1425-1426; Herzer, Federal Jurisdiction Over Statutorily-Based Welfare Claims, 6 Harv.Civ.Rights-Civ.Lib.L.Rev. 1, 7-9 (1970); Cover, Establishing Federal Jurisdiction in Actions Brought to Vindicate Statutory (Federal) Rights When No Violations of Constitutional Rights Are Alleged, 2 Clearinghouse Rev. No. 16, pp. 5, 24-25 (Feb.-Mar.1969). But see Note, The Proper Scope of the Civil Rights Acts, 66 Harv.L.Rev. 1285, 1292-1293 (1953). Thus, under the rationale adopted by most of the commentators that support his position, MR. JUSTICE WHITE’s concession that § 1343(3) must be read narrowly is irreconcilable with his assertion regarding the scope of § 1983.

20. Once it is understood that "and laws" in § 1979 is equivalent in meaning to "any law providing for equal rights" in § 629(16), it remains to determine precisely what is meant by an "equal rights" law. That problem is not presented by these cases. There is no need here to go beyond the Court’s decision that the Social Security Act is not such a law.

21. The absence of any comment by the revisers on § 1979 is especially significant in light of the fact that their general practice apparently was to add an explanatory note to the 1872 Draft whenever they believed their proposed language might be construed as effecting a change in existing law. See 2 Cong.Rec. 648 (1874) (remarks of Rep. Hoar).

22. The Senate did not give the bill the degree of attention it enjoyed in the House. After the latter had passed the bill, the Senate adopted it without amendment after only a very brief discussion. See 2 Cong.Rec. 4284-4286 (1874).

23. The implication in MR. JUSTICE WHITE’s opinion that his position is supported by Representative Lawrence’s comments on this occasion is simply contradicted by the record. See post at 664-665, and n. 40. Given the setting in which the comments were made, Congress’ awareness that the language of § 1979 had been altered indicates its understanding that no change in substance had been effected. Representative Lawrence’s statement that the final text of Rev.Stat. § 5510, as opposed to the Draft version of that statute, was broad enough "to include all [the rights] covered" by § 1 of the 1871 Act, 2 Cong.Rec. 828 (1874), does no more than confirm the view that §§ 5510 and 1979 were intended to be coextensive in scope. See infra at 641-644. Nor does the observation that § 5510 might "operate differently . . . in a very few cases" from its antecedent provisions lend support to MR. JUSTICE WHITE’s view. Seen. 28, infra.

24. Without offering his own interpretation of the legislative history, MR. JUSTICE WHITE now views that history as replete with "ambiguities, contradictions, and uncertainties." Post at 669. These confusions, however, are, for the most part, not inherent in the legislative history. With all deference, it seems to me they are largely the product of his opinion concurring in the judgment.

For example, nothing in the legislative history of § 1983 or § 1343(3), or in my analysis, implies that the 1866 Act "provided the outer limits of the federal civil rights effort in the post-Civil War years." Post at 663. Indeed, provisions of both the 1870 and 1871 Acts go well beyond the 1866 law. Nor are the four "technical problems," see post at 667-668, suggested by MR. JUSTICE WHITE apposite: (i) The revisers’ statement that the rights secured by § 16 of the 1870 Act were to be protected against adverse state action by § 1979 does not require the conclusion that § 16 was the exclusive source of such rights. Seen. 13, supra. (ii) Nor does it follow from the revisers’ prediction that the courts would not construe rights "secured by the Constitution" to include rights "secured by a law authorized by the Constitution" that they thought that every federal statute would be encompassed by the phrase "any law providing for equal rights." To the contrary, they recognized that the unique relationship between the Constitution and the recently enacted civil rights statutes made it quite proper to refer to the latter as constitutional rights. See supra at 632-633, and n. 14. (iii) The language in §§ 563(12) and 1979 could indeed have been chosen more carefully. See supra at 637. But the variations between these statutes are explained by the manner in which the revision was undertaken, seen. 15, supra, and do not preclude discovery of their precise meaning. (iv) If the revisers erred in limiting the jurisdictional provisions in the revision derived from § 3 of the 1866 Act to actions brought under color of state law, that error is quite independent of, and does not detract from, their statement explaining the reference in § 629(16) to equal rights laws. As I have shown, this reflects the correct interpretation of "and laws" in § 1983.

To be sure, no reading of history, including my understanding of the legislative history of § 1983, is beyond criticism. But any difficulties identified by MR. JUSTICE WHITE are inconsequential when compared with his disregard for Congress’ unequivocal wish not to alter the content of federal statutory law. SeePart I, supra. The arguments advanced in this opinion take full account of that legislative intent, while MR. JUSTICE WHITE’s opinion largely assumes the very fact to be proved: that § 1983 "was . . . expanded [in the revision] to encompass all statutory . . . rights." Post at 654. The direct evidence of Congress’ intent with respect to the alterations made in the language of § 1983 flies directly in the face of this assumption. See supra at 638-639, and n. 23.

While none of us is invariably consistent, MR. JUSTICE WHITE has not always disparaged the history of the post-Civil War civil rights legislation. In prior cases, he has insisted that the 19th-century Civil Rights Acts should be read narrowly when such a construction is required by their legislative history. See Runyon v. McCrary, 427 U.S. 160, 192 (1976) (WHITE, J., dissenting); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 449 (1968) (Harlan, J., joined by WHITE, J., dissenting).

25. The rights enumerated in § 16, of course, were taken directly from § 1 of the 1866 Act. See supra at 628.

26. The conduct proscribed included conspiracy, going "in disguise upon the public highway," and going "upon the premises of another."

27. In commenting on § 5510 during one of the special evening sessions of the House, see supra at 638-639, Representative Lawrence attributed the final version of this statute to Mr. Durant. 2 Cong.Rec. 828 (1874).

28. Although Representative Lawrence hypothesized that § 5510 "may operate differently from the original three sections in a very few cases," 2 Cong.Rec. 828 (1874), this is far from a suggestion that this provision was to have the breadth attributed to it by MR. JUSTICE WHITE. Indeed, a perusal of the House debates on the revision makes clear that any such intent would have been thoroughly inconsistent with the very purpose for which the House was then in session. See supra at 639.

29. MR. JUSTICE WHITE’s assertion that § 241 encompasses the same rights as § 242 is based in part upon dicta in opinions that have merely assumed this fact without reasoned consideration of the legislative history. See United States v. Price, 383 U.S. 787, 797 (1966); Screws v. United States, 325 U.S. 91, 119 (1945) (Rutledge, J., concurring in result). The proper scope of § 242 is not an issue in this case, except as circumstantial evidence of the meaning of § 1983. In light of the discussion above, there clearly are substantial reasons to doubt the correctness of the dicta concerning § 242 upon which MR. JUSTICE WHITE relies.

30. The relevant text in 18 U.S.C. § 242 now reads: "secured . . . by the Constitution or laws." (Emphasis added.)