This is the year 2020. As you may have noticed, holding police accountable matters a lot to a whole lot of people right now. We need a fair way of doing that, with buy-in from lawmakers and the public. Why would we instead allow our policy to hinge on what nine unelected judges think the term “under color of” meant in 1871? On what they think the common-law “backdrop” constituted back then? On how much deference they feel like giving to the last 60 years’ worth of their Court’s own precedents? Congress needs to debate these issues and decide how to resolve them on policy grounds, without regard to how a different Congress, dealing with different issues, handled the matter after the Civil War.

The challenge here is that the Police Unions have a lot of money and sway with some of the folks in congress we would hope to be most likely to push legislation for reform.