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In response to The Civil War Congress enacted The Civil Rights Act of 1871 subsequently known as 42 USC § 1983. Section 1983, applicable to the states through the Fourteenth Amendment, provides a civil remedy for persons who are deprived of constitutionally protected rights by persons acting "under the color of law".

The 1961 Supreme Court decision, Monroe v. Pape, establishes federal courts as the primary enforcers of federally protected rights by holding, that a person may bring a §1983 action in federal court without exhausting state remedies. For several reasons, as discussed in Justice Frankfurter's dissent, the majority opinion in Monroe expanded §1983 beyond the intent of its draftsmen.

Three purposes of §1983 where established before Monroe: 1)to override discriminatory state laws; 2)to provide a remedy when state law is inadequate and 3)to provide a remedy when the state recourse is adequate in theory but not available in practice. In Monroe, Justice Douglas purports to establish a fourth aim of §1983- to provide a remedy in federal court supplementary to any remedy any state may have.

The majority opinion claims, among other things, legislative history for this invalid expansion of § 1983. The history behind §1983 is limited. However, there is much history for its predecessor the 1871 act. This history undoubtedly provides support for the first three aims of §1983 but little support is found for the Monroe created aim. In short the legislative context for both §1983 as well as the 1871 acts demonstrates the acts meant to dispose of unconstitutional state statutes, not to deprive the state courts from hearing cases they are adequately and willingly prepared to hear.

The plaintiff, hereinafter Monroe, in Monroe brought a §1983 claim because Chicago police officers illegally entered his home without a warrant and subjected him and his family to a search and seizure in violation of the Fourth Amendment. At no time did Monroe contend that the police acted in accordance with a valid state law, that Illinois would not provide a forum in which Monroe could bring his claim of that Illinois was unwilling to uphold the unconstitutionality of the officers' actions. Therefore, under the law as it existed when Monroe filed the federal court should have deferred the case to the state court.

Although this deferment might appear to be parallel to the requirement of exhaustion, it is different in the aspect that it applies to not only equitable remedied but remedies at law as well. Under exhaustion the federal courts would dismiss based on its equitable discretion and not a lack of jurisdiction. Once the claimant had exhausted state remedies he could then, under certain circumstances bring a claim in Federal court. In a §1983 deferment the federal court would dismiss the claim based on a lack of jurisdiction. Instead Justice Douglas



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