William Baude Writes About Codifiers’ Errors
Codifiers' Errors and 42 U.S.C. 1983
Last week's Supreme Court decision in Health & Hospital Corp. of Marion County v. Talevski is an interesting case about causes of action to enforce legislation adopted under Congress's spending power, and prompted an especially interesting dissent from Justice Thomas about the basis and nature of the spending power that I commend to students of structural constitutional law. But one other interesting thing about it is that it reaffirmed the validity of a 1980 case called Maine v. Thiboutot.
What is Thiboutot and why is it interesting?
The federal statute for enforcing constitutional rights, 42 U.S.C. 1983, which was passed as Section 1979 of the Revised Statutes of 1874, reads:
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 . . .
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