Constitutional Remedies

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Constitutional remedies take different forms, including defenses to criminal prosecutions, postconviction habeas corpus actions, civil actions for damages, and declaratory and injunctive relief. Remedies for violations of constitutional rights, at first indistinguishable from more general legal remedies, became the focus of special congressional concern after the civil war and are now a highly developed set of modern rules shaped by both Congress and the Supreme Court.

Until well into the twentieth century, misbehavior by state or federal officials was more likely to be viewed as tortious or otherwise merely unlawful rather than as unconstitutional. As in marbury v. madison (1803) and dred scott v. sandford (1857), federal courts would refuse to enforce unconstitutional legislation, but the question of additional remedies for constitutional violations rarely arose. criminal procedure had not yet been federalized, and there were few constitutional rights that could give rise to distinctive remedies. Thus, early remedies against official misbehavior, such as the effort to vest jurisdiction in the Supreme Court to issue writs of mandamus, invalidated in Marbury, were not thought of as distinct constitutional remedies. Even today, the liability for damages of the United States (but not United States officials) is governed largely by the federal tort claims act, which does not by its terms distinguish between constitutional violations and other tortious conduct. It authorizes an action against the United States only if the challenged behavior also happens to violate state law. The conflating of constitutional violations and other legal wrongs limited and obscured constitutional remedies.

The Civil War led to the creation of new constitutional rights, and reconstruction era civil rights statutes demonstrated a new congressional belief in the need to give such rights special protection. Section 4 of the civil rights act of 1866, "with a view to affording reasonable protection to all persons in their constitutional rights of equality before the law," increased the number of federal judicial officers authorized to enforce the statutory protections of the act. The habeas corpus act of 1867 established federal habeas corpus relief as a remedy in all cases "where any person may be restrained of his or her liberty in violation of the constitution," a provision that survives with little substantive change today. The Enforcement Act (the Civil Rights Act of 1870) imposed criminal penalties for the violation of constitutionally protected voting rights and for conspiracies to violate constitutional rights. The Ku Klux Klan Act (the Civil Rights Act of 1871)—part of which is now section 1983, title 42, u. s. code—created a civil action for every person deprived, under color of state law, of constitutional rights. Similar criminal prohibitions, largely ineffective, against violating constitutional rights continue in force in Sections 241 and 242, Title 18, U.S. Code.

These Reconstruction statutes, combined with increasing substantive constitutional protections, led to important judicially generated growth of constitutional remedies in both the criminal and civil areas. In the 1920s the Supreme Court began to treat the due process clause of the fourteenth amendment as a limitation on state criminal procedure. The resulting constitutionalization of criminal procedure led to expanded direct review by the Supreme Court of the constitutionality of state court convictions and to greater use of federal habeas corpus to vindicate constitutional rights. The exclusionary rule for fourth amendment violations has been a particularly controversial remedy in the criminal sphere.

In the civil arena, the term "constitutional remedies" usually refers to damages actions and injunctive relief, each of which has had a distinct historical development. Injunctive relief for constitutional violations developed first. ex parte young (1908) established the availability, despite the eleventh amendment and the doctrine of sovereign immunity, of injunctive relief against unconstitutional behavior by state officers. The remedial power to enjoin unconstitutional behavior figured prominently in the fight against segregation statutes.

As the use of the injunction to protect constitutional rights grew, different forms of injunctive relief emerged. Injunctions protecting constitutional rights may be subdivided into simple injunctions and structural, or institutional, injunctions. The simple injunction, ordering, for example, that the unconstitutional statute not be enforced, has remained relatively uncontroversial. The proper scope of broader injunctive relief has been debated since the 1960s, when federal courts found that recalcitrant state officials and legislatures did not comply with court orders to desegregate school systems and to improve conditions in prisons or mental institutions. Remedial orders in such institutional litigation involved courts in the details of running institutions. desegregation orders not promptly obeyed led to hard choices about obedience to the rule of law in the face of resistance to one particular remedy, court-ordered school busing. Some observers raised questions about the legitimacy of judicial intervention in the operations of other public institutions and the capacity of courts as institutional managers. In a few cases, courts faced with years of noncompliance ordered local governments to finance constitutionally prescribed remedies, even going so far as to order increases in local taxes. In missouri v. jenkins (1990) the Court held that a federal district court may direct a local government to levy taxes to comply with desegregation requirements.

Damages were awarded against public officials in a few early twentieth-century decisions in cases brought under section 1983, and damages are one traditional remedy under the Fifth Amendment's taking of property clause. However, the modern right to recover damages against officials for constitutional violations is mainly traceable to monroe v. pape (1961) and bivens v. six unknown named agents (1971). In Monroe the Court held that section 1983 authorized a damages action against police officers who violated the Fourth Amendment in an illegal arrest and search. Actions based on section 1983 have since grown to encompass most constitutional harms, and litigation under the section constitutes one of the largest segments of federal court civil dockets. The remedies available under section 1983 include compensatory damages, punitive damages (against individuals, but not governments), injunctive relief, and the award of attorneys' fees. The Eleventh Amendment severely limits monetary remedies for constitutional violations, but the Supreme Court made clear that a state may be required to pay the cost of prospective compliance with the Constitution, such as the cost of desegregating a school system.

Section 1983 authorizes actions only against state officials. In Bivens the Court allowed a damages action against federal officials for violating the Fourth Amendment. After Bivens the Court recognized implied constitutional rights of action under the first amendment, Fifth Amendment, and Eighth Amendment. In the 1980s, however, the Court began to rein in the Bivens remedy. In Chappell v. Wallace (1983) and United States v. Stanley (1987) the Court refused to recognize Bivens actions for enlisted military personnel who alleged that they had been injured by unconstitutional actions of their superiors and who had no cause of action against the United States. In Bush v. Lucas (1983) the Court refused to create a Bivens remedy for a violation of a civil service employee's First Amendment rights, because the violation arose "out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States." And in Schweiker v. Chilicky (1988) the Court held that the denial of social security benefits in violation of due process did not give rise to a Bivens action against the wrongdoing officials.

Congress greatly influences constitutional remedies by expanding, contracting, and shaping them. The Fourteenth Amendment and other constitutional provisions authorize Congress to enact legislation, both remedial and substantive, to enforce constitutional rights. The Reconstruction statutes were enacted largely under this authority. Section 1983 and federal habeas corpus, both federal statutory remedies, are the two most frequently used constitutional remedies, aside from defenses to criminal prosecutions.

The limits of congressional power over constitutional remedies have not been fully tested. Congress has left in place the two most-used statutory protections and regularly rejects proposals to restrict federal court jurisdiction to hear particular classes of cases or to issue specific remedies. Congress did limit section 1983 by requiring, in the Civil Rights of Institutionalized Persons Act, that certain prisoners first exhaust state administrative remedies before bringing section 1983 actions. And, in refusing to extend Bivens actions, the Supreme Court, in Bush v. Lucas and Schweiker v. Chilicky, emphasized that comprehensive alternative congressional remedial schemes were already in place for protecting the constitutional rights asserted. Congress's refusal to enact jurisdictional limitations, together with the implausibility of repealing section 1983 or federal habeas corpus, suggests a deep national commitment to the ideal of remedying constitutional wrongs.

The modern growth of constitutional remedies may have modified that commitment in one important way. The increased availability of injunctive and damages relief taught that fully remedying each constitutional wrong comes at a cost, either in challenging the authority of governing officials or in increasing confrontations between the judicial and political branches of government or between federal courts and state officials. A full panoply of remedies to fix each constitutional wrong may have increased the Supreme Court's reluctance to acknowledge new constitutional rights. In paul v. davis (1976), Parratt v. Taylor (1981), and subsequent cases involving both the due process clause and section 1983, the Court may have curtailed substantive constitutional protections in order to avoid triggering extensive remedial relief.

Theodore Eisenberg


Eisenberg, Theodore 1982 Section 1983: Doctrinal Foundations and an Empirical Study. Cornell Law Review 67:482–556.

——1991 Civil Rights Legislation, 3rd ed. Charlottesville, Va.: Michie.

Nahmod, Sheldon H. 1986 Civil Rights and Civil Liberties Litigation, 2nd ed. Colorado Springs, Colo.: Shepard's.

Schwab, Stewart J. and Eisenberg, Theodore 1988 Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant. Cornell Law Review 73:719–784.

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Constitutional Remedies

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Constitutional Remedies