In a bracing engagement with a constitutional tort doctrine that he rightly describes as in disarray, Garrett West offers a diagnosis and proposes a cure. The doctrine has an inconstant commitment to the history of common law tort and an off-again, on-again engagement with first the nullification and then the affirmative rights (or duty) models of constitutional litigation. He offers a “deceptively simple” cure for the problems: with a better understanding of the nature of constitutional duty, the Court might better construct a coherent body of law to define constitutional rights and remedies.
Recounting the troubles with constitutional litigation, West begins with a familiar set of concerns. Despite the recognition of constitutional tort liability in Monroe v. Pape for state action claims under § 1983 and in Bivens v. Six Unknown Agents for claims against federal officers, limits on the doctrines narrow access to remedies. Bivens gives way in the hands of a Court wary of recognizing rights to sue, while forms of absolute and qualified immunity complicate effective redress. West also highlights the Court’s inconsistent approach to defining the elements of a constitutional tort, sometimes drawing on common law tort doctrine to fill out the elements and sometimes focusing instead on the constitutional text and related considerations.
Apart from recounting such problems, West offers an explanation. Nineteenth-century constitutional litigation often proceeded on a private or common law model in which the Constitution operated to nullify claims of official justification. In that world, official duties and individual rights were imposed and conferred by private law, often the general law of tort. Officials who were sued for violating those rights and duties would attempt to justify under state law and the constitutional provision in question could nullify that justification, leaving the official subject to liability at common law. Many early constitutional claims, including Osborn v. Bank of the United States, arose in this nullification model of litigation.
But nullification works only when private law rights and duties map onto the constitutional protections in question and remain under the control of federal judges keen to ensure the effective enforcement of the rights in question. Sometimes private law falls short—in Ex parte Young, private law failed to impose a duty on the attorney general of Minnesota to refrain from enforcing an unconstitutional state law. The Supreme Court thus chose to recognize a federal duty instead, one that it distinguished from that supporting injunctive relief based on private law (as in Osborn) and justified in part through precedent and in part through necessity. Since Ex parte Young, constitutional rights and duties have developed a life of their own, no longer tethered to the confines of private law. Monroe and Bivens confirm the switch from private to public law as the source of the duty being enforced.
That switch may have had important consequences for other developments. West shows that the exclusionary rule developed as a nullification rule, foreclosing the use of certain evidence at trial to prevent a form of self-incrimination. During the same term that Monroe came down, Mapp v. Ohio incorporated the exclusionary rule against the states. In doing so, the Court arguably reconceptualized the analysis, viewing the Fourth Amendment as the source of a constitutional duty imposed on police officers to refrain from unreasonable searches and seizures. Rather than preventing a self-incrimination violation that might occur at trial through nullification, suppression of the evidence was meant to redress the official’s duty to refrain from a wrongful search.
As West shows in a careful assessment of doctrinal nuance, all constitutional limitations on government power do not necessarily translate into official duties. Consider the dormant commerce clause (DCC) or the contracts clause, two restrictions on state power that were enforced through nullification remedies in the nineteenth century. The Court glossed over that conceptual limit in concluding during the 1990s that the DCC created rights affirmatively enforceable under section 1983 rather than through nullification. Similarly, in the relatively recent Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court upheld the right of individuals to challenge the structure of an agency on grounds that it interfered with the President’s removal powers under Article II. But limits on government power can be enforced or remedied through nullification; not every such limit translates into an official duty enforceable through injunctive relief.
West’s framework ramifies in a wide range of useful directions. He criticizes the use of common law tort to define the elements of constitutional tort claims, arguing persuasively that the elements should derive from the nature of the constitutional duty itself. Incorporation of the common law will tend to create a remedy that duplicates existing tort remedies without addressing the distinctive interests that animate the constitutional claim. He also helps us better understand pockets of absolute official immunity, as constitutional duties may differ for executive and legislative officers. More generally, West shares the reluctance of constitutional scholars such as Dick Fallon to define constitutional remedies by reference to private law of tort; private law can no longer supply a framework with which to vindicate the constitutional interests in question. The Court cannot turn back the clock to the nineteenth century world of nullification. The loss of general law, occasioned by the Erie doctrine, means that the framework for defining private law duty and right no longer lies within the control of the federal judiciary. Lacking authority to shape the rules of private law to vindicate federal interests, as Chief Justice Marshall did so adroitly in Osborn, the Court has been driven to the elaboration of constitutional law duties. That elaboration, in turn, has led to recognizing a host of rights that lack a foundation in private law.
West thus rejects the restoration of the nullification model proposed by such scholars as John Harrison, just as he rejects Harrison’s anti-suit injunction account of Ex parte Young. Instead, West leans into better defining constitutional duties. Such definitional efforts would foreground the text and ask if the provision operates to impose a duty on the officer in question. Rather than wholesale constitutionalism, in which every provision establishes an enforceable duty, West would have the Court create and administer a more nuanced body of law, a retail law of constitutional duty.
Puzzles remain. One cannot read the nineteenth-century cases without concluding that the Court worked hard to reshape the underlying general law to ensure effective remedies within the prevailing nullification regime. Sometimes, as Professor Woolhandler has shown, the Constitution was apparently deployed to force states to afford remedies that were unavailable in state court. In the Virginia Coupon Cases, for example, some combination of the due process and contract clauses nullifies state restrictions on general law remedies and imposes an enforceable federal duty on the collector to accept the disavowed coupons themselves. The cases suggest that the sharp line between nullification and duty may have blurred in the late nineteenth century, leading the Court to view its acceptance of the federal duty model in Ex parte Young as an incremental step.
While we have much to learn, West’s work promises a more fruitful framework for the analysis of constitutional torts. And it comes at the right time, as the American Law Institute rolls up its sleeves to prepare a Restatement of Constitutional Torts.
