The strongest legal critique of qualified immunity is not that it violates the Constitution. It is that the doctrine has no basis in the statute it limits. The Supreme Court built the immunity on the premise that Congress, in 1871, silently preserved common-law defenses. Scholars now point out that the original Act said the opposite: officials would be liable “notwithstanding” any contrary state law, custom, or usage. That clause dropped out when federal statutes were compiled in 1874. Defenders answer with history of their own and with stare decisis, and the Court has kept applying the doctrine.
The text of 42 U.S.C. § 1983 says that every person who, under color of state law, deprives someone of federal rights “shall be liable to the party injured.” There is no exception for good faith and no mention of immunity. Our analysis of Zorn v. Linton noted that gap in a sentence. This piece follows it further back, to the statute Congress actually passed in 1871, and to an argument that has moved from law-review footnotes into the opinions of federal judges: that the words Congress used to rule out defenses like qualified immunity were there all along, and were lost in an editing job.
Key takeaways
- The Supreme Court grounded qualified immunity in a presumption that Congress meant to keep common-law defenses in place when it passed the 1871 Act.
- The 1871 Act imposed liability “notwithstanding” any contrary state law, custom, or usage, language later omitted from the Revised Statutes of 1874.
- Alexander Reinert argues that clause defeats the Court’s premise; William Baude separately argued the doctrine lacks a lawful basis.
- Justice Thomas and Fifth Circuit Judge Don Willett have both written that the doctrine deserves reconsideration.
- Defenders point to stare decisis and to a contested historical record, and the Court continues to apply the doctrine.
I.The Court’s premise: a silent statute
When the Supreme Court first read a good-faith defense into § 1983 in Pierson v. Ray (1967), its reasoning ran like this. The statute should be read against the background of tort law as it stood when Congress acted. If common law in 1871 gave officials a defense, Congress would have said so had it meant to abolish that defense. Because § 1983 was silent, the defense survived.
Everything built since, including Harlow v. Fitzgerald’s “clearly established” test, rests on that interpretive foundation. Even as the doctrine later detached from any specific common-law defense, the justification stayed the same: Congress legislated against a background of immunities and did not displace them. That is a claim about what Congress wrote. Which makes what Congress wrote the obvious place to test it.
II.The words that went missing
Section 1983 began as section 1 of the Civil Rights Act of April 20, 1871, often called the Ku Klux Klan Act. As enacted, it provided that a person who deprived another of constitutional rights under color of state law “shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured.”
That middle clause did not survive into the modern code. When Congress’s revisers compiled federal statutes into the Revised Statutes of 1874, the provision became section 1979, and the “notwithstanding” language was gone. The text that courts read in the twentieth century, and the text in the U.S. Code today, comes from that revision.
In “Qualified Immunity’s Flawed Foundation,” published in the California Law Review in 2023, law professor Alexander Reinert argues that the omitted clause changes the analysis. The Court presumed that Congress was silent about common-law defenses. But the clause, Reinert contends, spoke directly to them: state-law rules, including the common-law customs and usages that supplied official immunities, were not to stand in the way of liability. On that reading the Court’s premise was mistaken from the start. Reinert also argues that the revisers had no authority to change the statute’s meaning, so the omission should not be read as a decision by Congress to restore the defenses.
The text at a glance
- 1871
- Act of Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13: liability “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding”
- 1874
- Revised Statutes § 1979: the same cause of action, without the clause
- Today
- 42 U.S.C. § 1983: “shall be liable to the party injured,” with no immunity language
- 1967
- Pierson v. Ray reads a good-faith defense into the statute
III.The earlier critique: “Is Qualified Immunity Unlawful?”
Reinert’s article built on years of scholarship, most prominently William Baude’s 2018 article “Is Qualified Immunity Unlawful?” in the same journal. Baude argued that the doctrine could not be justified on the Court’s own terms. He contended that there was no general good-faith defense to liability for constitutional violations in 1871, and that the founding-era tradition was closer to the opposite. A frequently cited example is Little v. Barreme (1804), where the Supreme Court held a naval captain liable for seizing a ship even though he acted on presidential instructions.
Baude also argued that the doctrine as it now exists, built around whether law was “clearly established,” bears little resemblance to any defense the common law recognized. If the justification is history, he wrote in substance, the doctrine fails the historical test.
IV.Justice Thomas’s doubts
The critique reached the Supreme Court through separate writings rather than a majority opinion. Concurring in Ziglar v. Abbasi (2017), Justice Clarence Thomas observed that the Court’s qualified-immunity analysis no longer tracked the common law of 1871, and wrote: “In an appropriate case, we should reconsider our qualified immunity jurisprudence.”
He returned to the theme in 2021 in Hoggard v. Rhodes, a statement respecting the denial of review in a case brought by a student who had been barred from setting up a small table near the student union at Arkansas State University to promote a student organization. Opening with the observation that the Court’s qualified-immunity jurisprudence “stands on shaky ground,” he asked why university officers, “who have time to make calculated choices about enacting or enforcing unconstitutional policies,” should get the same protection as a police officer making a split-second decision to use force.
He called it a “one-size-fits-all doctrine” and wrote that the Court should reconsider either that test “or the judicial doctrine of qualified immunity more generally.” In between, in 2020, he had dissented from the denial of review in Baxter v. Bracey. None of these separate writings is a holding of the Court.
V.Judge Willett and the notwithstanding clause
The notwithstanding-clause argument reached a federal appellate opinion in 2023. In Rogers v. Jarrett, a prisoner named Kevion Rogers alleged that after part of a barn ceiling collapsed on him and knocked him unconscious, officials delayed calling for medical help for hours; he was later diagnosed with a traumatic brain injury. The Fifth Circuit affirmed a grant of qualified immunity.
Judge Don Willett wrote separately. Relying on Reinert’s article, he described the omitted clause as “unsubtle and categorical” and the new scholarship as “game-changing,” and wrote that the sixteen words “explicitly displace[] common-law defenses.” What the 1871 Act imposed, in his account, “is not immunity, but liability.” He was equally clear about the limits of his role: however significant the lost text might be, a court of appeals cannot overrule the Supreme Court, and only the Justices can decide whether § 1983 “means what it says.” Rogers then asked the Supreme Court to take up the question in a petition docketed as No. 23-93.
VI.The case for keeping it
The doctrine has serious defenders, and their arguments deserve a fair statement. In “A Qualified Defense of Qualified Immunity” (2018), law professors Aaron Nielson and Christopher Walker took on the unlawfulness critique directly. Their central point is stare decisis. Because qualified immunity is a reading of a statute, the usual argument goes, Congress can change it whenever it chooses, and the Court has long given extra weight to precedents of that kind. Decades of decisions, they argued, should not be overturned on the strength of a historical debate that remains contested.
Nielson and Walker also argued that the historical case against the doctrine is not as settled as its critics suggest. And a reader of Reinert’s article is entitled to ask whether a clause aimed at state laws and customs was understood in 1871 to reach common-law defenses at all. That is the question on which his argument turns, and it is a fair place for disagreement.
What is not contested is the current state of the law. The Court has continued to apply qualified immunity, most recently in Zorn v. Linton this year, and no majority opinion has adopted the notwithstanding-clause argument.
VII.Why the argument matters for reform
The defenders’ strongest point is also the reformers’ best opening. If qualified immunity is a judicial gloss on a statute, Congress does not need the Court’s permission to remove it. It can restore, in modern terms, what the 1871 Congress wrote. Bills to do exactly that have been introduced repeatedly; we trace them in The Ending Qualified Immunity Act and Other Bills. Several states have also created their own civil-rights claims that exclude the defense. Whatever the courts decide about the history, the policy question belongs to legislators, and to the people who elect them.
Frequently asked questions
Is qualified immunity unconstitutional?
The leading critique is not that qualified immunity violates the Constitution but that it lacks a basis in the statute it limits. The doctrine is a judicial interpretation of 42 U.S.C. § 1983, and critics argue that interpretation is mistaken. Courts, including the Supreme Court, continue to apply it.
What is the notwithstanding clause in Section 1983?
As enacted in 1871, the statute said officials would be liable to the injured party notwithstanding any contrary state law, statute, ordinance, regulation, custom, or usage. That clause was omitted when federal statutes were compiled into the Revised Statutes of 1874 and does not appear in the current U.S. Code.
Has the Supreme Court addressed the missing clause?
No majority opinion of the Supreme Court has adopted the notwithstanding-clause argument. The Court has continued to apply qualified immunity, including in Zorn v. Linton, while Justice Thomas has written separately that the doctrine deserves reconsideration.
What do defenders of qualified immunity argue?
Defenders such as Aaron Nielson and Christopher Walker emphasize stare decisis: because the doctrine interprets a statute, Congress can change it, and long-settled precedent should not be overturned over a contested historical debate. They also argue the historical record is less one-sided than critics claim.
Could Congress end qualified immunity?
Yes. Because qualified immunity is a judicial reading of a federal statute, Congress can amend § 1983 to remove the defense. Bills to do so have been introduced in several Congresses, and some states have created their own civil-rights claims that exclude it.
Editorial note: This analysis is built from the cited opinions, statutes, scholarship, and reporting listed below. It is journalism and advocacy, not legal advice. If you believe your rights were violated, talk to a licensed civil-rights attorney in your state. Corrections: contact the editor.