Custom and Usage as Action Under Color of State Law: An Essay on the Forgotten Terms of Section 1983

Abstract

Section 1983 is the general federal civil rights statute which creates a cause of action for any deprivation of federal rights "under color of any statute, ordinance, regulation, custom, or usage of any state." The terms "custom" and "usage" in this context have a meaning that, if it was once known, has been forgotten, and to the extent that it resembles the ordinary meaning of these terms contrasts sharply with the other sources of state law listed in the statute. If these terms are given their ordinary meaning, then a wide range of private action would suddenly come within the coverage of the statute, allowing claims to be brought against private individuals and institutions for actions taken systematically to deny federal rights. This article tries to determine why the statute has not received this interpretation, and indeed, why the terms "custom" and "usage" have received virtually no interpretation at all in current decisions under section 1983. The meaning of these terms is analyzed in four different periods: in the era before section 1983 was enacted as part of the Civil Rights Act of 1871; in the debates over this act and over similar provisions in other civil rights acts passed during Reconstruction; in judicial decisions in the late nineteenth century invalidating or narrowly interpreting these acts; and in judicial decisions in the twentieth century that otherwise expanded the scope of the section 1983. In each of these periods, developments in legal doctrine are set against the background of jurisprudential views of the appropriate role of custom as a source of law. The article concludes by examining the implications of this historical inquiry for the current scope of civil rights laws, and particularly for the power of Congress under section 5 of the Fourteenth Amendment.