Five Views of Federalism: Converse-1983 in Context

In 1987, I published an overly long article in the Yale Law Journal entitled Of Sovereignty and Federalism. In it, I advanced a converse-1983 model of federalism-a model that highlighted the ways in which state laws can provide remedies when federal officials violate federal constitutional rights. For example, prior to the 1971 landmark of Bivens v. Six Unknown Federal Agents, citizens whose Fourth Amendment rights had been violated by federal officers had no clear federal cause of action; but state trespass law often provided a remedy, and enabled citizens to recover when their persons, houses, papers, [or] effects had been unreasonably searched or seized by federal officials. The point, I suggested, was generalizable. State remedies could often protect citizens against unconstitutional behavior by federal officers, just as federal remedies-such as Section 1983-could often protect citizens against unconstitutional behavior by state officials. Rightly understood, federalism should protect citizens and limit government abuse-in contrast to the Supreme Court\u27s regular invocation of Our Federalism to deny citizens full remedies for constitutional wrongs. Concretely, I argued in 1987 that states should adopt converse-1983 statutes that might invoke and invert the language of section 1983 as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of [the United States], subjects or causes to be subjected, any citizen of [this state] or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the [United States] Constitution, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress. The first draft of this overly long 1987 article was even longer still. Early on, I sketched out four competing models of federalism as foils for my own converse-1983 model. Eventually, I decided to omit this entire section for space reasons. I put the out-take in a drawer. And there it sat, collecting dust, until Barry Friedman phoned to invite me to participate in this symposium on Federalism\u27s Future. I fished the out-take from my drawer, dusted it off, and reread it. What I read seemed precisely relevant to federalism\u27s future- especially because of certain post-1987 developments in the Supreme Court that lead me to hope that the Court is moving in directions congenial to converse-1983. In Part I of what follows, I shall present-with only minor emendations-my original out-take from Of Sovereignty and Federalism, contrasting the converse-1983 model with competing conceptions of federalism. In Part II, I shall describe the post-1987 developments in Supreme Court case law that lead me to hope that converse-1983 can indeed play an important role in federalism\u27s future