Does the 'Lost Text' of Section 1983 Abrogate Common-Law Immunities? A Short Response to Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 CAL. L. REV. 201 (2023)

In Qualified Immunity’s Flawed Foundation, Professor Alexander Reinert identifies what he believes are two foundational errors in the Supreme Court’s qualified-immunity jurisprudence. The second error, the professor contends, involves language in the Civil Rights Act of 1871 that did not make its way into 42 U.S. Code § 1983. Reinert claims that, in this lost text, the act exlicitly abrogated common-law immunities. According to Reinert, this means that state law immunity doctrine has no place in section 1983. But the professor misreads the lost text. In this response, I engage in a straightforward interpretation of the lost text to correct that misreading.