The Past and Future of Constitutional Torts: From Statutory Interpretation to Common Law Rules

The cause of action for damages to redress violations of constitutional rights is now firmly established in our law. As recently as 1960, such constitutional tort suits were rare and attracted little attention from scholars. Today, they are a major part of the work of the federal courts and the academic literature is constantly growing. This change can be partly attributed to the expansion of constitutional rights in the 1960s and 1970s, and partly to the 1961 case of Monroe v. Pape. In Monroe, the Supreme Court revived a long-neglected, ninety-year-old statute, 42 U.S.C. 1983, making it the vehicle for a broad cause of action to remedy constitutional violations. In the years since Monroe, the Court has devoted considerable attention to defining the contours of this new tort remedy. In so doing, it has generally viewed its task as a search for the intent of the framers of section 1983. It has also relied at times on such tort-law policy considerations as the deterrence of wrongdoing, the vindication of rights, and the spreading of losses. The Court has referred to this approach as a two-part test for adjudicating constitutional tort claims. This article argues that the Court\u27s approach is deeply flawed. The so-called two-part test is not a set of standards for making rules, but a device by which the Court can often rationalize whatever result it desires in a given case. In fact, the two parts of the test -- legislative intent and tort-law policy considerations -- are frequently at odds with each other. Unless one or the other of these premises is abandoned, the rules generated from them will inevitably reflect the conflict between them. Although it has been the more prominent rational in the opinions, the Court should discard legislative intent as an analytic tool for adjudicating constitutional tort claims. First, quite apart from the conflict between tort policy and legislative intent, many glaring inconsistencies exist among the cases that purport to rely on legislative intent. One suspects, therefore, that the Court has not turned to the historical materials for guidance so much as it has manipulated them to achieve desired results. Second, even if the Court were sincere in its efforts to uncover legislative intent, the quest is doomed to failure. The framers of section 1983 did not and could not have formed any intent with regard to the issues that arise in modern constitutional tort law. By contrast, although the Court has sometimes invoked tort principles and policies in constitutional tort cases, it has never carefully and consistently developed the implications of such an approach. Rather, its references to tort concepts have been sporadic and superficial. Given the unsatisfactory state of the law under section 1983, this article argues that the Court should abandon the statute as the foundation for constitutional tort law. Instead, the Court should rely exclusively on tort principles and policies in developing its doctrine. This new species of constitutional tort would fit comfortably within a remedial tradition that stretches back to the down of the common law. This conception of the cause of action would describe the doctrine more accurately, allow issues to be framed more realistically, and provide a more convincing rationale than does the Court\u27s current statutory approach. A tort perspective also suggests that some of the Court\u27s major decisions in this area are simply wrong, as they cannot be persuasively defended in terms of traditional tort-law principles