The argument proceeds as follows. In Part I, I examine why the conceptual problem of who or what is "the State" is so intractable. In Part II, I present the historical evidence that establishes beyond doubt the pedigree and meaning of the phrase under color of law. I explain why Frankfurter would have indulged in such an obvious historical error to take the position he did. I suggest that, as was the case with the invention of modem standing doctrine, Frankfurter was here engaged in a stealthy, anachronistic campaign against the jurisprudence of the Lochner era - attempting to create doctrinal constraints on the federal courts' power to invalidate necessary social legislation.
In Part III, I examine the more complex metaphorical aspects of the meaning of the legal metaphor under color of law. I explore the conceptual bases of the metaphor, considering both the historical changes and the continuities in the socio-linguistic practices that underpin its meaning. The purpose of this linguistic analysis is threefold: first, to explain how the metaphor expresses the meaning that it does; second, to clarify why the meaning of the metaphor as it was incorporated in section 1983 is conventional to our culture, rather than arbitrary and contingent solely on the intention of the drafters; and third, to explore what the metaphor adds to our understanding of the conceptual problem at the heart of section 1983. The section closes with an analysis of what the historical and linguistic material implies for the interpretation of the statute.
My intention in this article is not to argue for the drafters' intent, but rather to employ a more faithful historical understanding of under color of law as "a way of seeing and then seeing again." Thus, in Part IV, I consider some of the broader ramifications of the color of law conception. I examine how this metaphoric conception changes our view of apparently unrelated doctrinal issues concerning the scope and coverage of section 1983. In this renewed vision, we can relocate the social dimension of the meaning of state power in a tradition committed to self-governance and, therefore, to governmental accountability - to see what was there once, to see what can be there now.
Steven L. Winter,
The Meaning of "Under Color of" Law,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol91/iss3/2