Implied Constitutional Rights of Action

views updated


One may seek judicial vindication of federal constitutional rights in at least three ways. Constitutional protections may be used as a shield against governmental misbehavior, as for example, when one relies on the Sixth Amendment guarantee of the right to counsel to contest a criminal prosecution. Second, one may rely on a constitutional right to enjoin allegedly unconstitutional behavior such as enforcement of an unconstitutional statute. Third, an aggrieved party may seek monetary compensation for past violations of constitutional rights. When invoked without express stautory authorization, the second and third techniques depend upon inferring the existence of implied rights of action to vindicate constitutional rights.

There is disagreement over whether, prior to ex parte young (1908), the offensive assertion of a federal right without a corresponding state-created right was sufficient to invoke a federal court's injunctive power. Young, which endorsed a federal injunction against enforcement of an allegedly unconstitutional state law, became the leading case to suggest that a federal cause of action for injunctive relief was implied merely from the existence of a constitutional right. This result has been a cornerstone of modern litigation contesting statutes and other government behavior. In later years, the Court interpreted section 1983, title 42, united states code, to supply statutory support for both equitable and monetary relief in constitutional actions against state officials.

By 1971, in light of Young and section 1983, only the existence of implied damages actions against federal officials remained open to question. Bell v. Hood (1946) suggested that federal courts have jurisdiction to consider whether alleged Fifth and fourth amendment violations by federal officials give rise to a cause of action for damages but it did not address the question of the cause of action's existence. In bivens v. six unknown named agents of the federal bureau of narcotics (1971), however, the Court held that an implied damages action exists for Fourth Amendment violations. davis v. passman (1979) held that a damages action was implied in the equal protection guarantee that has been found in the Fifth Amendment and constituted the Court's first extension of Bivens beyond Fourth Amendment claims. Carlson v. Green (1980), in which plaintiffs were allowed to bring an implied action under the Eighth Amendment, confirmed that Bivens-type actions are available under many constitutional provisions. Significantly, the Court has not held that such actions exist against state officials, a holding that would render superfluous much of its section 1983 jurisprudence.

Bivens, Davis, and Carlson suggested that Congress has an important role to play in determining the availability and scope of implied damages actions. The Court has left open the possibility of not inferring an implied damages action when defendants demonstrate "special factors counselling hesitation in the absence of affirmative action by Congress," or when, as in Bush v. Lucas (1983), Congress provides an effective alternative remedy. But Davis and Carlson v. Green indicated that the Court does not readily detect a congressional desire to foreclose Bivens actions. In Davis, Congress had declined to extend federal employment discrimination laws to preclude the behavior for which the Court inferred an implied private right of action. Carlson held that the existence of a remedy against the United States under the federal tort claims act did not foreclose a Bivens action against individual officers alleged to have violated the Constitution.

Theodore Eisenberg


Dellinger, Walter E. 1972 Of Rights and Remedies: The Constitution as a Sword. Harvard Law Review 85:1532–1564.

Hart, Henry M., Jr. 1954 The Relations between State and Federal Law. Columbia Law Review 54:489–542.