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The Supreme Court has long struggled with immunity under 42 U.S.C. § 1983. Section 1983 is the principal statutory vehicle used to remedy constitutional violations committed by state and local officials. Expansion or contraction of official immunity under the statute effectively decreases or increases officials' incentives to avoid those violations. A broader immunity doctrine will lead to more constitutional violations. However, it will also lead to a greater willingness to attempt potentially useful innovations whose constitutionality has not yet been determined. A narrower immunity doctrine will reduce the number of constitutional violations. However, it will reduce officials' willingness to experiment. Thus, the scope of official immunity under § 1983 has significant effects on the level of practical protection provided by the Constitution and on the willingness of public officials to innovate.

Despite the issue's importance, and more than two dozen decisions, the Supreme Court has been unable to create a stable body of immunity law. Courts continue to struggle with the issue of whether private individuals are sometimes entitled to official immunity. The Supreme Court has indicated that its previous holding that municipalities have no immunity from compensatory damages liability flowing from their constitutional violations may soon be drastically modified to provide immunity whenever a new decision clearly breaks with precedent.

The instability in immunity doctrine has not resulted from new historical insights on previous beliefs about the intent of the enacting Congress. In fact, the Justices have frequently ignored the suggestion of new insights or found them to be outweighed by considerations of stare decisis. This instability has resulted from inconsistent views of the Court's interpretive function. At various times, Justices have utilized at least five different approaches to determine § 1983 immunity issues. Yet their decisions contain only the most limited discussion of the basis for selecting one approach rather than another. The Justices have neither attempted to determine the enacting Congress's intent about interpretive approach, nor explained, on general jurisprudential grounds, their own choice of approach. Instead, they have either assumed that a particular approach was self-evidently correct or else justified it by its use in previous cases.

This Article suggests that none of the five approaches is consistent with the intent of the enacting Congress and proposes an alternative interpretive approach which focuses on the values of the enacting Congress. Under that approach, the Court may consider current societal conditions in deciding immunity issues under § 1983. However, it must implement the value structure of the 42nd Congress rather than the current Justices' own values. The 42nd Congress had a hierarchical value structure in which protection of individual rights was a hierarchically superior goal, i.e., one which must be accomplished as fully as possible before other goals are even considered. For members of the 42nd Congress, the obligation to protect individual rights was not merely one laudable objective to be balanced against others. Rather, it was an indefeasible duty which must be fulfilled on pain of dissolution of the moral basis of government. To implement the Congressional will, the Court should recognize only those immunities that would be consistent with that value structure.

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Northwestern University Law Review