I think it would depend on whether the definition of "under color of law" adopted in Monroe also defines "state action" under the 14th Amendment. If the two terms mean the same, then s. 1983 can be understood as s. 5 legislation prohibiting conduct that s.1 of the 14th Amendment already prohibits (in Monroe, an unreasonable search under incorporated 4th Amendment by a police officer). There is no requirement that such a statute be remedial or that there be congruence/proportionality--the congruence between what the statute prohibits and what s.1 prohibits is perfect. The problem you suggest would come to the fore if "under color" is broader than "state action."
Howard Wasserman FIU College of Law ----- Original Message ----- From: "Jonathan Miller" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Thursday, October 30, 2003 8:12 PM Subject: Monroe v. Pape after City of Boerne > In teaching Monroe v. Pape today, it struck me that City of Boerne v. Flores could be read as requiring the Court to rethink its position in Monroe and adopt the Frankfurter dissent. The argument would be that an action against a government official under section 1983 would have to satisfy the City of Boerne requirements for legislation using the authority of the 14th amendment to be constitutional -- hence be remedial of a situation where constitutional violations have already occurred. Unless "usage" has been for constitutional violations to go unremedied in the State, then there is no remedial justification. Simple enforcement of federal law against State officers that have acted illegally under both State and Federal law would not satisfy the requirement that it be remedial. Am I missing anything? And is there anyone who has developed this idea -- which I hope the Court never adopts? >
