Don R. Willett, Circuit Judge:

or more than half a century, the Supreme Court has claimed that (1) certain common-law immunities existed when § 1983 was enacted in 1871,2 and (2) “no evidence” suggests that Congress meant to abrogate these immunities rather than incorporate them.3 But what if there were such evidence? Indeed, what if the Reconstruction Congress had explicitly stated—right there in the original statutory text—that it was nullifying all common-law defenses against § 1983 actions? That is, what if Congress’s literal language unequivocally negated the original interpretive premise for qualified immunity? Professor Alexander Reinert argues precisely this in his new article, Qualified Immunity’s Flawed Foundation—that courts have been construing the wrong version of § 1983 for virtually its entire legal life.

Beyond excavating the long-lost text of what the Reconstruction Congress
actually passed, Professor Reinert asserts a second fundamental misstep: qualified
immunity is rooted in a flawed application of the checkered “Derogation Canon.

“If a legislature enacts a statute, but no one bothers to read it, does it still have interpretive force?”