ABSTRACT
The constitutional tort is one of the most important mechanisms for vindicating constitutional rights. But the doctrine governing such claims is in disarray. A plaintiff bringing suit against a state official under § 1983 or a federal officer under Bivens faces a series of hurdles to obtain relief: The Supreme Court has crafted absolute- and qualified-immunity rules based on supposed analogies to common-law immunities. It has required plaintiffs alleging constitutional violations also to show that they can satisfy certain elements of common-law claims. And the Court has limited damages for constitutional torts to the categories available at common law. Together, these doctrines deny or circumscribe remedies for constitutional wrongs.
These downstream doctrinal errors flow from an upstream conceptual confusion about constitutional rights. Since the second half of the twentieth century, the Supreme Court has been stuck between two competing ways of thinking about constitutional rights. The first framework – the ‘nullification’ framework – is one in which the common law or state law imposes duties on officers, and the Constitution operates only to nullify governmental efforts to suspend, modify, or abolish those pre-existing rights. The second framework – that of ‘constitutional duties’ – is one in which the Constitution directly imposes duties on officers that are independent of underlying state law and that necessitate distinct remedies.
The tension between those two frameworks recurs throughout constitutional tort law, including disputes about the best interpretation of § 1983; the enforceability of the dormant Commerce Clause through § 1983; the meaning of the First and Eighth Amendments; the recognition of absolute- and qualified-immunity doctrines; the elements of constitutional tort claims; and the calculation of damages. The question is what to do about it. The embrace of the framework of constitutional duties would require reconsideration of how courts assess the availability of constitutional tort claims, the elements of those claims, the scope of official immunities, and the calculation of damages. To state the answer in deceptively simple terms, all of those questions should turn on the substance of constitutional rights and not on the scope of the common law. And there are no coherent alternatives to embracing constitutional duties. A doctrinal regime that attempts to repudiate constitutional duties and restore the nullification framework would produce a distorted simulacrum of the original system. I conclude by suggesting that unpacking the two competing frameworks of constitutional rights illuminates a series of contested issues throughout constitutional law – including the exclusionary rule, sovereign immunity, and structural constitutional challenges – and raises deeper questions about the normative justifications for constitutional torts, including the unsettling possibility that constitutional torts should not be refined but radically revised and perhaps even repudiated.
West, E Garrett, Refining Constitutional Torts (August 11, 2023), Yale Law Journal, Forthcoming.
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