Qualified immunity has faced trenchant criticism for decades, butrecent events have renewed focus on this powerful defense to liabilityfor constitutional violations. This Article takes aim at the roots of thedoctrine—fundamental errors that have never been excavated. First,this Article demonstrates that the Supreme Court’s qualified immunityjurisprudence is premised on a flawed application of a dubious canonof statutory construction—namely, that statutes in “derogation” of thecommon law should be strictly construed. Applying the DerogationCanon, the Court has held that 42 U.S.C. § 1983’s silence regardingimmunity should be taken as an implicit adoption of common lawimmunity defenses. As this Article shows, the Derogation Canon hasno appropriate role to play in interpreting Section 1983. Courts andscholars have called it into question for more than a century. Evenwhen courts have applied the canon, they have used it to disfavordisplacement of common law claims, not common law defenses. Andthe Derogation Canon operates in inherent tension with a contrarycanon: remedial statutes, like Section 1983, should be given a broadreading.
This Article also identifies a second significant failing in theCourt’s qualified immunity law. For even if the Derogation Canonvalidly applied to defenses, the Reconstruction Congress that passedSection 1983 meant to explicitly displace common law immunities.Most critically, scholars and courts have overlooked the importanceof the originally enacted version of Section 1983, which contained aprovision that specifically disapproved of any state law limitations onthe new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilationof federal law in 1874. This Article is the first to demonstrate theimplications of the lost text of Section 1983.
Taken together, these twin insights show that the problems withthe Court’s immunity doctrine run deeper than prior scholarlycriticism has imagined. Much of current qualified immunityscholarship has addressed, in compelling fashion, how the Court hastaken the immunity doctrine too far from its common law origins. Butthis Article shows that qualified immunity is flawed from the groundup. In other words, the problem with current qualified immunitydoctrine is not just that it departs from the common law immunity thatexisted in 1871. The Court has failed to grapple with the strongarguments that no immunity doctrine at all should apply in Section1983 actions.