Reconstructing Section 1983

Tyler B. Lindley*

Conventional wisdom holds that Section 1983, a statute making state officials liable for constitutional violations in federal court, created a federal cause of action governed by federal law. Disputes concerning secondary issues like qualified immunity are downstream from that conclusion. But the conventional narrative is ahistorical. Enacted in 1871, Section 1983 arose in a world in which federal courts were limited to adjudicating state-law causes of action governed by non-preempted state law. In this context, Section 1983 would have required a plaintiff to identify and bring a state-law cause of action—satisfying all the non-preempted state-law requirements for that cause of action—in addition to identifying and proving a constitutional violation.

One might question the relevance of this conclusion: We live in a different legal world than that of 1871, and, even setting that difference aside, federal courts have treated Section 1983 as creating a federal cause of action governed by federal law for more than sixty years. But that perspective would be mistaken. Section 1983’s original understanding is likely binding today. None of the legal changes since 1871 have altered the basic premise that Section 1983 relies on state-law causes of action governed by state law rather than providing a federal one. And as for stare decisis, assuming it applies, the modern test is overcome. The precedent is egregiously wrong and poorly reasoned, is unworkable, has been undermined by subsequent legal developments, and has engendered no cognizable reliance interests.

A return to the original understanding of Section 1983 would bring with it a state-law-focused regime. Plaintiffs would likely need to use contemporary state-law causes of action and would have to satisfy the corresponding, non-preempted state-law requirements. But, of course, state law could not conflict with the Constitution or federal law. This new regime would also flip the current relationship between state courts and federal courts on its head—instead of state courts following precedent from federal courts, federal courts would at times need to follow state-court precedent. And the reframing would provide firmer ground for giving states—but not necessarily their municipalities and local bodies—immunity from damages in actions arising under Section 1983.

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© 2026 Tyler B. Lindley. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, J. Reuben Clark Law School, Brigham Young University; J.D., The University of Chicago Law School; B.S., Brigham Young University. For very helpful discussion and feedback on previous drafts, the author thanks John Acton, Stephanie Barclay, William Baude, Rishabh Bhandari, Sam Bray, Jeremy Brown, Jud Campbell, Charles Capps, Nathan Chapman, Chance Fletcher, Kellen Funk, John Harrison, Scott Keller, Tara Grove, Cree Jones, Thomas Lee, Jonathan Masur, Aaron Nielson, Bradley Rebeiro, Micah Quigley, Larry Solum, Adam Steene, Steve Vladeck, Christopher Walker, Garrett West, Ilan Wurman, Michael Zarian, and participants in the Federalist Society Young Legal Scholars panel, the Georgetown Center for the Constitution Research Fellows Workshop, and the Rocky Mountain Junior Scholars Forum. Ligia Velasquez, Wes White, Jackson Cho, and A.J. Starr provided excellent research assistance. And for indispensable discussion and support, he thanks his wife, Katrina Lindley.