THE PATH OF THE CONSTITUTION: THE ORIGINAL SYSTEM OF

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 1 21-MAR-12 13:28

THE PATH OF THE CONSTITUTION:

THE ORIGINAL SYSTEM OF REMEDIES,

HOW IT CHANGED, AND HOW

THE COURT RESPONDED

INA

IAN

This Article explores how the path of the common law shaped some of the Supreme

Court’s most important decisions regarding constitutional remedies. The Article

first introduces the original system of common law remedies for constitutional

rights. It then explains how these remedies atrophied, both doctrinally and

pragmatically, and how this posed deep problems for the constitutional rights that

depended on them. The Article selects three cases—Mapp v. Ohio, Monroe v.

Pape, and Bivens v. Six Unknown Named Agents—to demonstrate how concerns

about those remedies shaped constitutional rights. These cases have been debated

many times over, but for all the debate, there has been scarce attention paid to the

problem the Court was addressing: the relationship between the Constitution and

common law remedies and, more specifically, what to do about constitutional rights

that depended on dwindling common law remedies. Indeed, this relationship hardly

receives any attention in classrooms or scholarship today, yet it is at the core of the

judiciary’s role in implementing the Constitution. This descriptive gap has distorted

our normative debate about the relative merits of these cases. The last part of the

Article suggests four potential methodologies for coherently managing the relation-

ship between the Constitution and common law remedies.

NTRODUCTION

................................................. 133

I. T

RIGINAL

YSTEM

................................. 138

A. Judicial Enforcement of Constitutional Rights in a

Government of Enumerated Powers................. 138

B. Original Remedies Applied in the Antebellum Era . . 145

II. E

ROSION OF

OMMON

EMEDIES

................. 149

A. Officer Immunity ................................... 150

B. Pragmatics .......................................... 159

C. The Common Law in a New World ................. 161

III. R

ETHINKING

ORE

ECISIONS OF

ONSTITUTIONAL

MPLEMENTATION

....................................... 162

A. The Exclusionary Rule .............................. 163

1. The Federal Exclusionary Rule.................. 166

2. Incorporating the Federal Exclusionary Rule .... 176

* Copyright



2012 by Sina Kian, Law Clerk to the Honorable Thomas B. Griffith,

United States Court of Appeals for the District of Columbia Circuit, 2010–11; J.D., 2010,

Stanford Law School. I owe thanks to Benjamin Alden, Janet Alexander, Brian Barnes,

Joshua Cohen, Anthony Dick, George Fisher, Robert Gordon, John Harrison, Jake Heller,

Pamela Karlan, Orin Kerr, Amalia Kessler, Lawrence Lessig, Steven Menashi, David

Pozen, Dan Schweitzer, Matthew Seligman, and Eugene Volokh.

132

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 2 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 133

B. Federal Causes of Action ........................... 182

1. Monroe v. Pape................................. 182

2. Bivens v. Six Unknown Named Agents ......... 190

IV. T

ONSTITUTIONAL

PTIONS

......................... 192

A. Option 1: The Stoic Constitution .................... 196

B. Option 2: Rights Preservation ....................... 199

C. Option 3: A Baseline System of Common Law

Remedies ............................................ 201

D. Option 4: The Laboratories of Democracy .......... 202

ONCLUSION

................................................... 204

NTRODUCTION

On September 24, 1766, colonial customs officials, accompanied

by a sheriff, knocked on the door of merchant Daniel Malcom. After

presumably brief pleasantries, the officials revealed their writ of assis-

tance—a general warrant issued by a customs official. Mr. Malcom

inspected the warrant and allowed the men into his home, but he specif-

ically denied them access to a locked cellar. Believing the warrant did

not confer authority to enter the cellar, Mr. Malcom informed the offi-

cials that they could not lawfully enter and that he would use force

against them if they tried. The officials abided and left, but not for long.

They returned with a specific search warrant, but this time to a locked

home and a crowd numbering between fifty and three hundred people

gathered to protest the intrusion.

One scholar called this “the most

famous search in colonial America.”

On February 11, 2010, at 8:30 p.m., a fully armed SWAT team in

Missouri gathered in the dark outside the residence of Jonathan

Whitworth. One officer began knocking on the door, yelling “Police!”

and “Search warrant!” When a resident meekly opened the door, a

member of the team shoved it open, allowing the entire team to storm

the residence. They shot and killed one resident dog, and shot and

wounded another. They arrested Mr. Whitworth, who did not resist,

and led him out of his home. The entire episode took place before Mr.

Whitworth’s wife and seven-year-old son. As a result of the search, the

SWAT team discovered “a grinder, a pipe and a small amount of

See J

OHN

HILIP

EID

, I

EBELLIOUS

PIRIT

10–25 (1979) (describing the

incident).

TIS

H. S

TEPHENS

& R

ICHARD

A. G

LENN

, U

NREASONABLE

EARCHES AND

EIZURES

: R

IGHTS AND

IBERTIES

NDER THE

39 (2006).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 3 21-MAR-12 13:28

134 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

marijuana.”

There are approximately 40,000 such incidents every year

in the United States, and none receive very much attention.

Much has changed in our constitutional culture, not least of which

is how these two men could vindicate their rights in court. This Article

describes the original system of remedies, how that system changed,

and how those changes affected constitutional rights as we recognize

them today. Originally, the Constitution was to be implemented

through remedies available for violations of common law rights.

For

example, if the customs officials had improperly entered Mr.

Malcom’s home, he could have sued the officials for trespass. If the

search were unconstitutional, the officers would have had no defense

for their actions and would have been liable for money damages. In

the antebellum Union, this was a robust remedy. After the Civil War,

however, the availability and effectiveness of the damages remedy

declined. Officers committing the same offense were increasingly able

to invoke immunity against lawsuits and more generally avoid the

prospect of paying damages for such acts.

This trend seriously threatened constitutional rights

and impli-

cated a fundamental question that receives little attention today: What

is the relationship between the Constitution and the common law? In

other words, what, if anything, should the judiciary do when the

common law remedies on which constitutional rights had depended

begin to change in ways that threaten those rights? If Mr. Whitworth’s

rights were violated, and if the common law remedy of trespass were

no longer available, would he be out of luck? This Article selects three

particularly important cases—Mapp v. Ohio,

Monroe v. Pape,

and

Bivens v. Six Unknown Named Agents of Federal Narcotics Bureau

—

as emblematic of how the problem of dwindling common law reme-

dies affected the Court’s jurisprudence. Today, Mr. Whitworth would

David Brennan, Family Questions SWAT Drug Search that Led to Dog’s Death,

OLUMBIA

AILY

RIB

., Feb. 23, 2010, at A1. A video of this event is available at http://

www.youtube.com/watch?v=qpfLLtPJvxA (last visited Feb. 8, 2012).

ADLEY

ALKO

, O

VERKILL

: T

ISE OF

ARAMILITARY

OLICE

AIDS IN

MERICA

1 (2006).

This Article generally refers to these as “common law remedies,” but it is worth

clarifying that remedies for common law (and statutory) rights were available at both law

and equity.

Contemporary discussion of constitutional remedies often focuses on the many intri-

cacies of modern remedies, treating common law remedies as obsolete curiosities. Cf., e.g.,

ICHAEL

L. W

ELLS

& T

HOMAS

A. E

ATON

, C

ONSTITUTIONAL

EMEDIES

: A R

EFERENCE

UIDE TO THE

NITED

TATES

ONSTITUTION

11–13 (2002) (devoting fewer than two out

of over two hundred pages to an in-depth discussion of common law remedies).

367 U.S. 643 (1961).

365 U.S. 167 (1961).

403 U.S. 388 (1971).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 4 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 135

likely find his remedies in these cases: exclusion of evidence (if the

evidence was illegally obtained) and money damages (if the officers

violated his constitutional rights without qualified immunity). Of

course, the Court had other options for how to respond to the chal-

lenge of dwindling common law remedies, and the Article will end by

briefly describing the alternatives.

A more detailed outline of the Article’s structure is as follows.

Part I introduces the enumeration principle—the simple idea, implicit

in popular sovereignty and explicit in the Ninth Amendment, that

powers not given to government are held by the people. The enumera-

tion principle defines “unconstitutional” acts as those that govern-

ment does not have the power to authorize. Part I then explains how

this principle historically interacted with the common law to create a

system of remedies for violations of constitutional rights. Throughout

the eighteenth and nineteenth centuries, judicial enforcement of con-

stitutional rights took two forms, both of which were dependent on

the enumeration principle. The first is familiar today: Defendants can

assert constitutional rights as defenses against suits, including criminal

prosecutions. The enumeration principle voids unconstitutional laws

(or unconstitutional applications of laws), thereby guaranteeing that

defendants will not be harmed under the alleged authority of such a

law.

This Article focuses primarily on the second form of remedy:

Those who suffered a violation of their rights were able to bring suit,

in common law or equity, against the responsible agent. The enumera-

tion principle was traditionally understood to flatly prohibit legal rec-

ognition of any law seeking to authorize unconstitutional action. As a

result, if that agent did something unconstitutional, he would have no

legally cognizable defense for violating the plaintiff’s rights. This was

the original system of constitutional remedies, robust and undisputed

in the antebellum Union. In this system, the Constitution was inti-

mately reliant on the common law, and, whether a right was asserted

offensively or defensively, that right depended on the enumeration

principle to void any unconstitutional laws that were otherwise

invoked to justify invading it.

Part II describes how the common law and the Constitution went

their separate ways, such that the Constitution’s policies were no

longer in neat accord with the remedies provided by state common

law regimes. In both doctrine and practice, the common law remedies

withered as tools for enforcing constitutional rights. This change

posed deep challenges for constitutional values. It not only constricted

particular constitutional rights but also threatened to dramatically

rework the balance of federal and state power.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 5 21-MAR-12 13:28

136 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

In light of the history outlined in Part II, Part III reexamines

three of the most controversial Supreme Court decisions regarding the

adjudication of civil liberties—Mapp, Monroe, and Bivens—to

demonstrate how the dynamics of common law remedies most visibly

affected the Court’s dispositions. For example, the exclusionary rule

that was incorporated in Mapp had its origins not in the minds of

clever jurists, as many now assume, but in a simple property law

remedy: If someone took your property, you could sue to get it back.

But the waning adequacy of common law remedies increased the sali-

ence and appeal of federal remedies that were free from the whims of

state common law—thereby giving rise to cases like Monroe and

Bivens. Generally speaking, the logic of these cases—today often

characterized as necessary or implied by some, and overreaching or

made-up law by others—is actually intimately reliant on the nature

and path of common law remedies. Thus, the contribution of Part III,

standing alone, is to provide a doctrinal history of these cases that has

heretofore been lacking.

The broader ambition of the Article is to renew the vigorous

debate over these cases with this history in mind. The literature’s

failure to describe the motivation behind the outcomes in these cases

has accordingly distorted the normative debate about their place in

our constitutional system. Those who support these decisions tend to

defend them as good policy or perhaps as vaguely implied or inherent

in the Bill of Rights. Opponents dismiss these cases as bad policy or

unsupported by originalist principles.

Yet this debate dramatically misrepresents the cases and the chal-

lenges they posed to the jurists who considered them. The existing

literature is at best unable to describe why these cases came out the

way they did and at worst simply misguided. The primary mistake is

that the scholarship draws a narrative of constitutional rights without

considering the role of remedies. This is surprising because the idea

that any meaningful discussion of rights ought to consider remedies is

not just a central tenet of so-called “legal realism”

but an intuition

See, e.g., Oliver Wendell Holmes, The Path of the Law, 10 H

ARV

. L. R

. 457, 458

(1897) (“[A] legal duty so called is nothing but a prediction that if a man does or omits

certain things he will be made to suffer in this or that way by judgment of the court;—and

so of a legal right.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 6 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 137

that runs deep in Anglo-American legal thought,

and one that

retains influence today.

Finally, Part IV seeks to introduce a more useful methodological

debate, that is, the “options” for judicial enforcement of constitutional

rights. The options in Part IV provide distinct alternatives for how to

deal with the problem of the dwindling common law remedies that

once serviced constitutional rights. The first option is to accept a net

loss in judicially enforced constitutional protections. That is, constitu-

tional rights are only enforceable insofar as their antecedent, non-

constitutional remedies allow, and if those remedies dwindle in scope

or availability, and if constitutional rights deflate as a result, then so

be it—that is a problem for the political system, not the federal judi-

ciary. For those unwilling to incur deflation of constitutional rights,

there are essentially three other options. The second is to adapt—to

interpret and recalibrate rights in order to preserve them in the face of

otherwise eroding remedies. The third is to require a baseline of spe-

cific common law remedies and to have the judiciary ensure their

availability. This approach would require a due process right to a

remedial process not inconsistent with those available in 1791 and

1868. The fourth is to leave the entire question of remedies to the

states, thereby accepting a diversity of approaches while monitoring to

ensure that the remedies each state provides are constitutionally

adequate.

While this Article does not address the normative question of

which option is best, it provides these options as a useful and unexam-

ined methodological starting point for how to handle the

Constitution’s relationship with the common law. Doing so challenges

the way scholars think about and debate the underlying cases. As a

descriptive matter, cases like Mapp, Monroe, and Bivens should be

viewed not as blatant, politically- motivated expansions of rights, but

See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“The government

of the United States has been emphatically termed a government of laws, and not of men.

It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the

violation of a vested legal right.”); Ashby v. White, (1703) 92 Eng. Rep. 126 (H.L.) 136; 2

Ld. Raym 938, 954 (Holt, C.J.) (“[I]t is a vain thing to imagine a right without a remedy.”);

1 W

ILLIAM

LACKSTONE

, C

OMMENTARIES

55–56 (Univ. of Chicago Press 1979) (1765)

(“For in vain would rights be declared, in vain directed to be observed, if there were no

method of recovering and asserting those rights, when wrongfully withheld or invaded.

This is what we mean properly, when we speak of the protection of the law.”).

For a particularly compelling recent example, see Daryl J. Levinson, Rights

Essentialism and Remedial Equilibration, 99 C

OLUM

. L. R

. 857, 857 (1999), in which the

author states that “[n]o less than in contract and property law—where from Holmes to

Calabresi and Melamed we have recognized that rights and remedies are functionally inter-

related—rights and remedies in constitutional law are interdependent and inextricably

intertwined.”

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 7 21-MAR-12 13:28

138 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

rather as decisions based on these options and constraints. As a nor-

mative matter, the debate over constitutional rights often assumes

that a particular constitutional outcome is available or it is not. For

example, scholars speak for and against the exclusionary rule. This is

incomplete. One’s position on the exclusionary rule is, or at least

should be, tied to how one understands the relationship between the

Constitution and the common law—as emblematic of a choice given

the four options. This Article tells the story of how the Court came to

negotiate the contours of that relationship.

RIGINAL

YSTEM

The original system of constitutional remedies worked as follows:

If an officer violated one of your constitutional rights, you could sue

him as an individual, and you would win because he would have no

defense for his wrongful act. Behind this simple system, however,

lurks an interesting interplay of institutions and legal doctrines.

Section A will describe how sovereign immunity and the enumeration

principle contributed to making this system the primary means by

which constitutional rights were offensively asserted (and thus how

remedies for violations of these rights were provided). Section B will

then discuss major antebellum cases that demonstrate these principles

at work.

A. Judicial Enforcement of Constitutional Rights

in a Government of Enumerated Powers

The original system of judicial remedies for constitutional trans-

gressions arose from the interplay of two doctrines. First, the principle

of sovereign immunity prohibited individuals from suing the govern-

ment, state or federal, without first obtaining the government’s con-

sent.

The act of expelling the Crown, embodied in the Declaration of

Independence, made clear that that immunity was not boundless, but

this left ambiguity as to whether milder forms of the doctrine survived

the Revolution. This became the first issue docketed before the brand

new Supreme Court of the United States in Van Staphorst v.

Maryland,

where the Governor of Maryland was issued a summons

for a debt owed to Van Staphorst. But before the case could be

See generally Caleb Nelson, Sovereign Immunity as a Doctrine of Personal

Jurisdiction, 115 H

ARV

. L. R

. 1559 (2002) (discussing the Founding-era understanding of

sovereign immunity as denying individuals the ability to command states to appear in

court).

ARCUS

AEVA

, 5 T

OCUMENTARY

ISTORY OF THE

UPREME

OURT OF THE

NITED

TATES

, 1789–1800, at 7 (1994) (“The question of the suability of states surfaced in

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 8 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 139

decided, Maryland settled in order to avoid giving the Federalist

Supreme Court an opportunity to set a precedent threatening its

sovereignty.

The issue did not evade review for long. Two years later, in 1793,

the Court handed down its controversial opinion in Chisholm v.

Georgia,

holding that states were indeed amenable to suit. In

response, the states rallied and passed the Eleventh Amendment, clar-

ifying that the provision of Article III interpreted by Chisholm did not

usurp long standing assumptions about immunity as inherent to sover-

eignty.

The logic of sovereign immunity also required that the doc-

trine of respondeat superior have no application in suits against

government officials, meaning that unconsenting states could not be

held liable for the conduct of their officers.

Government officers

who personally committed any wrong, in tort or otherwise, were liable

only as individuals, even if that tort was committed within the scope of

their employment.

The second relevant doctrine goes to the core of the Constitution

and American political philosophy: the enumeration principle. The

rest of this Section will briefly discuss the role of that principle in the

debate over the Bill of Rights, and the implications of that debate—

more precisely its premises—for how the judiciary was drafted to

enforce the Constitution.

The idea of enumerated powers—that powers not explicitly con-

ferred are withheld—formed the core of Alexander Hamilton’s argu-

ment against a bill of rights, “[f]or why declare that things shall not be

done which there is no power to do?”

This question contained a syl-

logism premised on the American Revolution’s most important con-

tribution to the organization of government: popular sovereignty.

the very first case entered on the Supreme Court docket, Van Staphorst v. Maryland, which

commenced in February 1791 and was settled the following year.”).

Id. at 19. Maryland’s House of Delegates reported that allowing the case to go on

“may deeply affect the political rights of this state, as an independent member of the

union” and that a “compromise” was preferable to permitting a “precedent to be estab-

lished, by which any individual foreigner may endanger the political and private rights of

this state and her citizens.” Id. (quoting V

OTES AND

ROCEEDINGS OF THE

TATE OF

H.D., R

EPORT OF THE

OMM

. R

EVENUES

, D

EBTS

AND

XPENDITURES

, 1st Sess.,

at 89. (Dec. 13, 1791)).

2 U.S. (2 Dall.) 419 (1793).

See Nelson, supra note 13, at 1585–92 (discussing an interpretation of the language

of Article III in which unconsenting states would not be amenable to suit).

OSEPH

TORY

, C

OMMENTARIES ON THE

AW O F

GENCY

§ 319 (Boston, Little,

Brown & Co. eds., 6th ed. 1863).

EDERALIST

. 84, at 537 (Alexander Hamilton) (Henry Cabot Lodge ed.,

New York and London, G.P. Putnam’s Sons 1888).

No other nation had realized popular sovereignty so explicitly and so prominently in

practice. As Blackstone put it, “[t]he sovereignty, though always potentially existing in the

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 9 21-MAR-12 13:28

140 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

Legitimacy derives from the people. This means the government has

no more power than what is conferred to it by the people. In such a

system, a constitutionally recognized right can be understood as a

power withheld from the government or an exception to an otherwise

granted power. To Hamilton and like-minded Federalists, enumer-

ating a right where the federal government had no power was

arguably worse than superfluous for two reasons. First, it would imply

a power to regulate the realm protected by that right.

Second, the

common law had demonstrated that natural rights reveal themselves

in endless, fact-specific iterations; an exhaustive list being impossible

to create, those rights not listed would be implicitly excluded.

The logic was clean; the application, not. Anti-federalists were

quick to respond and, indeed, Hamilton’s argument proved too much:

We find they have, in the ninth section of the first article declared,

that the writ of habeas corpus shall not be suspended, unless in

cases of rebellion,—that no bill of attainder, or ex post facto law,

shall be passed,—that no title of nobility shall be granted by the

United States, etc. . . . Does this Constitution any where grant the

power of suspending the habeas corpus, to make ex post facto laws,

pass bills of attainder, or grant titles of nobility? It certainly does

not in express terms. The only answer that can be given is, that

these are implied in the general powers granted. With equal truth it

may be said, that all the powers which the bills of rights guard

against the abuse of, are contained or implied in the general ones

granted by this Constitution.

This debate was animated by a core tradeoff: The need for specific,

enumerated rights becomes more imperative as government is granted

more and broader powers. As some saw it, the powers conferred to

the federal government were broad and vague. The power to do eve-

rything “necessary and proper” in regulating “commerce . . . among

the several States”

did not, of its own logic, prevent the federal gov-

ernment from convicting defendants for embargo violations through a

people of every independent nation, or state, is in most of them, usurped by, and con-

founded with, the government. Hence in England it is said to be vested in the parliament:

in France, before the revolution, and still, in Spain, Russia, Turkey and other absolute

monarchies, in the crown, or monarch; in Venice, until the late conquest of that state, in the

doge, and senate, &c.” 1 W

ILLIAM

LACKSTONE

, C

OMMENTARIES

app. at 10 (St. George

Tucker ed., William Young Birch & Abraham Small 1803) (1765).

See T

EDERALIST

, supra note 19, at 537 (“[T]he provision against restraining the

liberty of the press afforded a clear implication, that a power to prescribe proper regula-

tions concerning it was intended to be vested in the national government.”).

Id.

NTIFEDERALIST

. 84, at 245–46 (Morton Borden ed., Mich. State Univ.

Press 1965) (emphasis omitted).

U.S. C

ONST

. art. I, § 8, cl. 18.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 10 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 141

trial by affidavit or in a trial without jury. As Blackstone observed, the

advantage of a written constitution was that it did not leave power

undefined.

However, as Hamilton’s reasoning demonstrated, there

was something of a seesaw dynamic between power and rights: The

possibilities were to enumerate broad powers and specific rights, or to

secure broad rights by circumscribing the government’s powers. The

broader the powers conferred to the federal government, the more

salient the need for a bill of rights.

By contrast, if the federal govern-

ment were given only narrow and well-defined powers, as it was in the

Articles of Confederation, the need for specific rights seemed less

pressing. Not surprisingly, then, the Articles of Confederation, while

focused on limiting the powers of federal government, did not pay

much attention to individual rights. By contrast, state constitutions,

which conferred broad powers to branches of state government, all

contained bills of rights.

This tradeoff was critical. In fact, Madison confided that his sup-

port for a bill of rights was based on the understanding that a demand

for specifically enumerated rights was in lieu of, or at least staved off,

the demand for a more circumscribed federal government.

According to Blackstone:

The advantages of a written constitution, considered as the original contract of

society must immediately strike every reflecting mind; power, when undefined,

soon becomes unlimited; and the disquisition of social rights where there is no

text to resort to, for their explanation, is a task, equally above ordinary capaci-

ties, and incompatible with the ordinary pursuits, of the body of the people.

But, as it is necessary to the preservation of a free government, established

upon the principles of a representative democracy, that every man should

know his own rights, it is also indispensably necessary that he should be able,

on all occasions, to refer to them.

LACKSTONE

, supra note 20, at 154–55; see also id. at 287 (arguing that notwithstanding

Tenth Amendment and Federalist assurances otherwise, the Necessary and Proper Clause

immediately “destroy[ed] the effect of the particular enumeration of powers” and citing

“the act for establishing a bank; the act authorising the president to appoint officers to

volunteer corps of militia; the act declaring that a paper not stamped agreeably thereto,

shall not be admitted as evidence in a state court; the alien and sedition laws, &c”).

As Thomas Jefferson put it: “Half a loaf is better than no bread. If we cannot secure

all our rights, let us secure what we can.” Letter from Thomas Jefferson to James Madison

(Mar. 15, 1789), in 14 T

APERS OF

HOMAS

EFFERSON

660 (Julian P. Boyd ed.,

Princeton Univ. Press 1958).

See, e.g., F

RANCIS

EWTON

HORPE

, T

EDERAL AND

TATE

ONSTITUTIONS

(1906) (compiling state constitutions). In a similar vein, it is perhaps not surprising that the

protections offered by the Bill of Rights became more robust, or were at least more often

triggered, following incorporation and the Court’s expanding interpretation of the

Commerce Clause. These shifts required the Bill of Rights to operate alongside a federal

government with growing legislative authority and state governments with considerable

preexisting legislative authority.

In a letter, Madison wrote:

The friends of the Constitution . . . wish the revisal to be carried no farther

than to supply additional guards for liberty . . . and are fixed in opposition to

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 11 21-MAR-12 13:28

142 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

This debate, its premises, and its outcome—enumerating broad

powers and carving comparatively narrow rights—were immediately

relevant to how the Constitution was to be implemented by the

branches of government. Whereas William Shakespeare once wrote,

“it is excellent, [t]o have a giant’s strength; but it is tyrannous, [t]o use

it like a giant,”

the Constitution reserved from giants the powers it

did not want them to use.

This idea—that powers not granted were

reserved completely—was the enumeration principle, and it can be

seen in how laws are passed and enforced. In broad terms, when

passing a law, both houses of Congress must determine, by majority

vote and in accordance with the strictures of Article I, that Congress

has the authority to pass a particular piece of legislation under Article

I and that the proposed legislation does not violate other provisions of

the Constitution, most notably Article I, Section 9 and the Bill of

Rights. The President must conclude the same, and sign the bill into

law to signify that conclusion. Then, the executive branch must

enforce the law and, to the extent it continues to believe the law is

constitutional, defend the law in courts.

From here, the judiciary’s involvement takes one of two forms.

First, a court may have to determine whether the law is constitutional.

the risk of another Convention . . . . It is equally certain that there are others

who urge a second Convention with the insidious hope of throwing all things

into Confusion, and of subverting the fabric just established, if not the Union

itself.

Letter from James Madison to Thomas Jefferson (Dec. 8, 1788), in T

APERS OF

HOMAS

EFFERSON

, supra note 26, at 340.

ILLIAM

HAKESPEARE

, M

EASURE FOR

EASURE

act 2, sc. 2.

This commonly held understanding is inherent in the Constitution’s structure. The

Constitution begins as a grant of power from “We the People” to the government, as

“ordain[ed] and establish[ed]” in the Constitution, U.S. C

ONST

. pmbl., and, after enumer-

ating the powers granted to that government, the Constitution proceeds to a Bill of Rights.

The Ninth Amendment then provides that “[t]he enumeration in the Constitution, of cer-

tain rights, shall not be construed to deny or disparage others retained by the people.” Id.

amend. IX. The Tenth Amendment provides that “powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.” Id. amend X.

This responsibility found recent example in President Obama’s announcement that

he will no longer defend the constitutionality of the Defense of Marriage Act in court.

Press Release, Dep’t of Justice, Statement of the Att’y Gen. on Litig. Involving the Def. of

Marriage Act (Feb. 23, 2011), available at

http://www.justice.gov/opa/pr/2011/February/11-ag-222.html.

These two approaches are often described using the sword-shield metaphor. See gen-

erally Walter E. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 H

ARV

L. R

. 1532 (1972) (describing the alternate uses of constitutional guarantees as “shields”

against government action, and as “swords” in affirmative causes of action against the gov-

ernment). As we will see in the Section about the exclusionary rule, this metaphor, while

useful, should not overstate the degree of distinction between a constitutional right

enforced offensively and one enforced defensively.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 12 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 143

To the extent that “enforcement” implies a prosecution or a lawsuit

against a party, the defendant can defend himself by challenging the

constitutional validity of the law, thus triggering judicial review.

The

court would then have to find, again, that Congress had authority to

pass the law, and that the law, as applied by the executive, did not

violate the defendant’s constitutional rights.

This form of judicial

review, affirmed by Marbury v. Madison,

has hardly been ques-

tioned since, and generally remains robust today.

Second, a court

may be asked to remedy a constitutional wrong. To the extent that

executive “enforcement” of a law constitutes harassment, assault, or

For the most recent example, see Bond v. United States, 131 S. Ct. 2355, 2359 (2011),

in which the Court concludes that “a person indicted for violating a federal statute has

standing to challenge its validity on grounds that, by enacting it, Congress exceeded its

powers under the Constitution, thus intruding upon the sovereignty and authority of the

States.” See also id. at 2368 (Ginsburg, J., concurring) (“In short, a law ‘beyond the power

of Congress,’ for any reason, is ‘no law at all.’ The validity of Bond’s conviction depends

upon whether the Constitution permits Congress to enact § 229. Her claim that it does not

must be considered and decided on the merits.” (citing Nigro v. United States, 276 U.S. 332,

341(1928))).

Recently this point has been confused in the scholarship. One article, for example,

claims that the First Amendment has no application to the executive branch. See Nicholas

Quinn Rosenkranz, The Subjects of the Constitution, 62 S

TAN

. L. R

. 1209, 1255 (2010).

There, it is claimed that “[a First Amendment] violation has nothing to do with the applica-

tion of the law to any particular person[,]” and that “[t]he violation is complete before the

law is applied at all.” Id. Consequently, the author concludes that

[a] First Amendment freedom-of-speech challenge cannot be an ‘as-applied’ or

‘as-executed’ challenge to executive action; it must be a ‘facial challenge’—that

is, a challenge to legislative action. The alleged constitutional violation must be

visible on the face of the statute: lex ipsa loquitur. And the claimed remedy is a

declaration that the product of the legislative action—the ‘law’—is not law at

all.

Id. This insight is incomplete because it does not fully account for how the result—that the

“law” is “not law at all”—actually does constrain the executive. The First Amendment

restrains the executive by prohibiting Congress from passing laws that would provide exec-

utive officers with valid authority to abridge the freedom of speech. This means that an

executive officer will be liable if he tries to enforce an act of Congress that violates the

First Amendment (because, at risk of being redundant, such an act does not provide valid

authority for the officer’s actions). Because Congress cannot authorize such actions, execu-

tive officers cannot claim such authority.

5 U.S. (1 Cranch) 137 (1803).

After the court passes on constitutional questions that are properly raised in the

proceeding, the jury implicitly has the opportunity to pass on the constitutionality of a law

or its application through jury nullification. After this, the defendant has at his disposal

direct review, habeas, and the possibility of presidential pardon. And finally, aggrieved

parties may also look to resuscitate incarnations of popular constitutionalism discussed

elsewhere. For example, in the context of an “overly assertive Court,” see generally L

ARRY

D. K

RAMER

, T

EOPLE

HEMSELVES

: P

OPULAR

ONSTITUTIONALISM AND

UDICIAL

EVIEW

(2004). The author states that “[t]he Constitution leaves room for countless polit-

ical responses . . . Justices can be impeached, the Court’s budget can be slashed, the

President can ignore its mandates, Congress can strip it of jurisdiction or shrink its size or

pack it with new members . . . .” Id. at 249.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 13 21-MAR-12 13:28

144 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

other wrongs like trespass, the aggrieved individual has historically

been guaranteed due process of law. To secure his life, liberty, and

property, he need look no further than the oldest and most celebrated

method of vindicating natural rights in English history: the common

law. In a suit against an officer “enforcing” a law, the officer would

necessarily invoke his authorization as a defense.

The plaintiff would

then have the opportunity to challenge either the officer’s action as

outside the scope of authorization, or the authorization itself as

unconstitutional. If this challenge were successful, the officer would be

defenseless and liable.

This was not just a formality, but an outcome

dictated by the enumeration principle and by a commitment to pop-

ular sovereignty.

The enumeration principle was thus integrated into every step of

constitutional implementation, from legislating in Congress to final

review on habeas. To say that an action is unconstitutional is to say

that it was done without the authority conferred to government by the

people—either because the power was not conferred, or because it

was specifically withheld in the form of a right. An unconstitutional

action is forceless, like a judgment on United States patent law made

by a provincial bankruptcy court in Canada, or like the government of

France passing a law abolishing the death penalty in the United States.

It is important to note that no particular scheme of remedies nec-

essarily follows from the enumeration principle by itself. The system

only works when the enumeration principle is combined with a system

of remedies like the common law. The common law provides the

remedial mechanism, mainly a forum in which to bring suit and assert

one’s right. The enumeration principle worked inside that forum. In

the context of a suit, it allowed the court to inquire into whether the

Constitution permits the officer’s actions and to negate the officer’s

defense if it does not. The force of the enumeration principle seems

See, e.g., Sina Kian, Note, Pleading Sovereign Immunity, 61 S

TAN

. L. R

. 1233,

1246–47 (2009) (describing the dynamics of the pleading requirements in the context of

officer suits).

Id. at 1247.

Again, this is because popular sovereignty means that power emanates from the

people, and, by extension, the enumeration principle means that government can only

invoke the power enumerated to it by the Constitution. The contours of that power are

defined by general grants of authority (for example, the Commerce Clause) and specific

areas where power is withheld in the form of rights reserved for individuals—for example,

the federal government was not granted authority to inflict cruel and unusual punishment.

Thus, if an officer does inflict such punishment, he cannot avoid liability for assault or

battery by asserting his authority as an officer.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 14 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 145

simple enough—perhaps too simple—but it will be a critical con-

straint discussed later in the Article.

B. Original Remedies Applied in the Antebellum Era

The common law remedy found immediate and robust applica-

tion. Although prominent accounts of the application of these reme-

dies begin with the Supreme Court’s decisions in Cohens v. Virginia

or Osborn v. Bank of the United States,

the practice had a signifi-

cantly deeper and richer role in the Republic’s history.

One of the most noted examples in British common law involved

a trespass action against the King’s Chief Messenger, Nathan

Carrington, who “with force and arms” broke into the home of John

Entick, an associate of the English radical John Wilkes.

Carrington

did this under the supposed authority of a warrant from Secretary of

State Lord Halifax, which instructed him “to make strict and diligent

search for . . . the author, or one concerned in the writing of several

weekly very seditious papers.”

Entick sued Carrington and the

This simple idea also sheds light on other separation of powers questions, or at least

clarifies what precisely is at issue. For example, scholars have long debated whether courts

can issue advisory opinions. See R

ICHARD

H. F

ALLON

, J

ET AL

., H

ART AND

ECHSLER

’

EDERAL

OURTS AND

EDERAL

YSTEM

79–85 (5th ed. 2003) (discussing

various issues associated with advisory opinions). The enumeration principle reorients this

inquiry. If the Constitution “prohibits” advisory opinions, this simply means such opinions

will have no legal effect; they are void. The question is not whether courts can issue advi-

sory opinions, but what effect is given to these opinions. Thus, according to the enumera-

tion principle, courts can issue all the advisory opinions they like, but these opinions have

no legal effect but the power of their reason, like an op-ed or a law review article (this

analysis, of course, does not address the ethics or appropriateness of a judge using the

imprimatur of her office to issue legal opinions that, in effect, amount to little more than an

op-ed). This idea also sheds light on what should be easy cases of wrongly-invoked immu-

nity. For example, there is some evidence that lawmakers believe their legislative immunity

extends to private wrongs against other individuals, thus authorizing lawmakers to drink

and drive, or physically assault others. See, e.g., Marc Lacey, A Legal Privilege that Some

Lawmakers See Broadly, N.Y. T

IMES

, Mar. 11, 2011, at A13 (recounting such instances of

claimed immunities). The enumeration principle, of course, embodies the commonsense

intuition that such invocations of immunity cannot stand, and it does so by asking a simple

question: Was this an authority granted to members of government by the people? As a

general matter, it is safe to say that the license to drink and drive or to freely commit

domestic violence is not the kind of authority granted to representatives by the federal or

state constitutions.

19 U.S. (6 Wheat.) 264 (1821).

22 U.S. (9 Wheat.) 738 (1824).

See, e.g., David E. Engdahl, Immunity and Accountability for Positive Governmental

Wrongs, 44 U. C

OLO

. L. R

. 1, 10 (1972) (noting Cohens as an early Supreme Court case

allowing such a remedy to proceed); Louis L. Jaffe, Suits Against Governments and

Officers: Sovereign Immunity, 77 H

ARV

. L. R

. 1, 21 (1963) (describing Osborn as

“boldly . . . stak[ing]” a wide field for actions against state officers).

Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.) 807; 2 Wils. K.B. 275.

Id. at 808.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 15 21-MAR-12 13:28

146 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

officers in trespass and, because the warrant was unconstitutional, he

recovered £1000 against one of the officials who conducted the search,

and £4000 against Lord Halifax

—serious sums of money when

accounting for over 200 years of inflation. This case assumed a legen-

dary status in American jurisprudence; the Supreme Court many

years later would refer to it as a “great judgment,” a “landmark[ ] of

English liberty,” a case “welcomed and applauded by the lovers of

liberty in the colonies,” and a “true and ultimate expression of consti-

tutional law.”

This practice was not limited to England or post-

independence America; it was a primary legal vehicle by which the

colonies resisted English tyranny.

A decade after ratification, the Supreme Court reaffirmed the

legitimacy of judicially enforcing rights in this manner, its harshness

on officers notwithstanding. In Little v. Barreme,

the President spe-

cifically instructed the commander of a U.S. warship to intercept and

seize a Danish vessel suspected of violating a nonintercourse law.

However, the President misconstrued the relevant statute, and in fact

there was no legal authority for the seizure.

This meant that the

officer’s defense would be void; he had no valid authority to excuse

his actions. The district court ordered restoration of the vessel and its

cargo, but denied damages. The circuit court reversed the denial of

damages, and the Supreme Court upheld the decision of the circuit

court.

The officer, for following executive instruction, was ordered

to pay $8504 in damages—approximately $120,000 today. Chief

Justice Marshall paused at the legally correct yet intuitively trouble-

some result. He noted, “I confess the first bias of my mind was very

strong in favor of the opinion that though the instructions of the exec-

utive could not give a right, they might yet excuse from damages,”

but he ultimately agreed “that the instructions cannot change the

nature of the transaction, or legalize an act which without those

instructions would have been a plain trespass.”

Key here is that

See Boyd v. United States, 116 U.S. 616, 626 (1886) (describing the outcome of

Entick v. Carrington).

Id.

See, e.g.,C

ARL

BBELOHDE

, T

ICE

-A

DMIRALTY

OURTS AND THE

MERICAN

EVOLUTION

67–68 (1960) (describing customs officer’s seizure of sloop and owner’s sub-

sequent use of common law action to preempt admiralty jurisdiction). This monograph also

explains how colonists hinted or implied that limitations on that common law action were

themselves constitutional infringements, particularly as those limitations applied to the

jury right. See id. at 76–79, 189–90.

6 U.S. (2 Cranch) 170 (1804).

Id. at 178–79.

Id. at 172.

Id. at 179.

Id.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 16 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 147

immunizing an officer from damages is a way of authorizing or “legal-

izing” his conduct, and because the enumeration principle prohibits an

unconstitutional act from being “legalized,” it also prohibited immu-

nizing an officer from damages.

Two years later, Chief Justice Marshall addressed the issue again

without pause. In Wise v. Withers, a court martial had imposed fines

on a justice of the peace in the District of Columbia for failing to

enroll for militia duty.

Though the statute exempted “the officers,

judicial and executive, of the government of the United States,” the

court martial found that a justice of the peace did not qualify.

collector entered the defendant’s home and seized property to satisfy

the fine. The Supreme Court disagreed with the court martial’s

reading, held that justices of the peace were exempt from duty,

and

found that the collector was personally liable. The Court stated quite

plainly, “it is a principle, that a decision of such a tribunal, in a case

clearly without its jurisdiction, cannot protect the officer who executes

it.”

Neither Little nor Wise concerned constitutional rights. Rather,

they affirmed a dynamic that had, at its core, an understanding of gov-

ernmental power. Simply put, government could not exercise power

not delegated to it. At the statutory level, as seen in Little and Wise,

this meant that officers enforcing obligations inconsistent with or in

excess of those imposed by the law were without authority, without

immunity, and subject to suit insofar as their actions violated rights.

It followed, a fortiori, that officers would be subject to suit for

acting beyond the bounds of authority conferred to government by

the Constitution. And so the case law went. The most prominent

example from the Marshall era was Osborn v. Bank of the United

States, where an officer ignored an injunction requiring otherwise and

extracted an unconstitutional tax from the Bank.

The state law

“authorizing” the tax was no defense, as states were not empowered

to authorize unconstitutional laws, so the tax collector could be

sued.

Likewise, in Davis v. Gray, the plaintiff railroad sued officers

to enjoin them from authorizing settlers to enter the railroad’s land.

The defendants pointed to a law as their authorization, a law the

plaintiffs challenged as violating the Contracts Clause. And because

7 U.S. (3 Cranch) 331 (1806).

Id. at 332 (emphasis omitted).

Id. at 337.

Id.

22 U.S. (9 Wheat.) 738 (1824).

Id. at 870.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 17 21-MAR-12 13:28

148 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

that law did violate the Contracts Clause, the defendants were person-

ally enjoined.

The Court was unwavering in its application of the enumeration

principle,

even in the face of honest mistakes.

The strength of its

application was best stated in Woolsey v. Dodge: “There is no axiom

of the law better established than this. A void law can afford no justifi-

cation to any one who acts under it . . . .”

The enumeration principle guided state supreme courts as well.

Perhaps the most interesting and straightforward example came from

the Civil War indemnity acts.

One of them, the 1863 Act, provided

that

any order of the President, or under his authority, made at any time

during the existence of the present rebellion, shall be a defence in

all courts to any action or prosecution, civil or criminal, pending, or

to be commenced, for any search, seizure, arrest, or imprisonment,

made, done, or committed, or acts omitted to be done, under and by

virtue of such order, or under color of any law of Congress.

This was impossible without abandoning the enumeration principle

and, with it, the concept of popular sovereignty. While the Court did

not have the opportunity to review the indemnity acts,

the Supreme

Court of Indiana held the statute unconstitutional because it

83 U.S. (16 Wall.) 203 (1872).

See, e.g., Bates v. Clark, 95 U.S. 204 (1877) (upholding a damages verdict for trespass

against an army captain and lieutenant who were following seizure orders given from an

United States Attorney). There, the Court reasoned:

[M]ilitary officers can no more protect themselves than civilians in time of

peace by orders emanating from a source which is itself without authority. . . .

So the plea that they had good reason to believe that this was Indian country,

and that they acted in good faith, while it might excuse these officers from

punitory damages, is no defence to the action. . . . [T]heir honest belief that

they had is no defence in their case more than in any other, where a party

mistaking his rights commits a trespass by forcibly seizing and taking away

another man’s property.

Id. at 209.

See, for example, Amy v. Supervisors, 78 U.S. (11 Wall.) 136 (1870), in which the

Court stated:

The rule is well settled, that where the law requires absolutely a ministerial act

to be done by a public officer, and he neglects or refuses to do such act, he may

be compelled to respond in damages to the extent of the injury arising from his

conduct. There is an unbroken current of authorities to this effect. A mistake

as to his duty and honest intentions will not excuse the offender.

Id. at 138; see also Developments in the Law—Remedies Against the United States and Its

Officials, 70 H

ARV

. L. R

. 827, 836 n.51 (1957) (summarizing this point).

Woolsey v. Dodge, 30 F.Cas. 606, 607 (C.C. Ohio 1854), aff’d, 59 U.S. 331 (1856).

See Engdahl, supra note 43, at 48–50 (citing and discussing the indemnity acts in the

context of sovereign immunity).

Act of March 3, 1863, ch. 81 § 4, 12 Stat. 755, 756.

Engdhal, supra note 43, at 50.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 18 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 149

attempted to immunize and therefore authorize, something the

Constitution never gave the government power to do.

There seemed

to be no authorities in antebellum America that contradicted the enu-

meration principle, or even called its wisdom into question. But that

soon changed.

ROSION OF

OMMON

EMEDIES

Part I introduced how common law remedies combined with the

enumeration principle to implement constitutional rights. Part II

describes how this system was disrupted, as common law remedies

began to wither both doctrinally and practically so as to threaten the

constitutional rights that the remedies once protected. This break-

down set the stage for the Supreme Court’s response, which is dis-

cussed in Part III.

America in the 1870s was a union of communities, “a nation of

loosely connected islands,” where even cities “retained much of the

town’s flavor.”

Below this world, there was another nation inhabited

by European immigrants, Chinese workers, migratory workers, and,

of course, those who by overdue fortunes of history were suddenly

experiencing the realities of their emancipation proclaimed. More and

more, economic forces began whirling American society, exposing the

different worlds to one another and, in the process, challenging the

coherence of communities. By the 1880s, the nation was deep in the

midst of transformation; as one historian put it, “[a]n age never lent

itself more readily to sweeping, uniform description: nationalization,

industrialization, mechanization, urbanization.”

These trends created others. The breakdown of local communi-

ties, an integrating economy, exponentially increasing crime rates,

growing state and federal bureaucracies, and growing police forces—

local and state at first, and, with Prohibition, federal—all placed enor-

mous stress on the common law system of remedying constitutional

harms. These factors worked to increase the number of interactions

between individuals and their government and, correspondingly, the

number of constitutional transgressions. In 1924, one scholar

described the “unexampled expansion of the police power in the

United States” as increasing the costs of “defective, negligent, per-

Id. (quoting Griffin v. Wilcox, 21 Ind. 370, 372–73 (1863)).

OBERT

H. W

IEBE

, T

EARCH FOR

RDER

1877–1920, at 3, 4 (1967).

Id. at 12. See generally id. at 44–75 (describing social and economic dynamics that

undermined the traditional structures of American communities).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 19 21-MAR-12 13:28

150 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

verse or erroneous administration” of government functions.

more constitutional rights were violated (or as more people claimed

that they were), the remedial system was called to do more and more

work.

Under this stress, the common law system of remedies, long

assumed to be the vehicle by which the Constitution would be

enforced,

began to contract and fragment in ways that were inconsis-

tent with constitutional law and policy. The first was an increasing

trend toward affording officers immunity from damages.

Second, the

common law remedies withered to practically nil, in part because

plaintiffs were increasingly unsympathetic before local juries. Third,

new technologies, such as telephones and wiretapping, implicated con-

stitutional rights that did not give rise to causes of action (and there-

fore remedies) at common law.

A. Officer Immunity

As Part I demonstrated, the original system of common law rem-

edies for constitutional rights depended on holding officers liable for

actions that were inconsistent with the authority granted to govern-

ment by the Constitution. The whole point of the enumeration prin-

ciple was that the government could not authorize actions inconsistent

with the Constitution. It is not difficult to see how that system—the

marriage of common law remedies with the enumeration principle—

would be existentially threatened by officer immunity for unconstitu-

tional actions. Immunization is an important form of authorization.

Edward M. Borchard, Government Liability in Tort, 34 Y

ALE

L.J. 1, 1 (1924). Of

course, that trend has continued over time. For example, in 2002, the New York City Police

Department stopped, questioned, and sometimes frisked approximately 98,000 people. In

2004, the number was over 300,000, and by 2009, the number had reached 575,000. In 2002,

numbers from the New York Attorney General’s Office revealed that for every nine

people stopped, one person was arrested. Today, that ratio has doubled, counting eighteen

stops for every arrest. Over eighty percent of those being stopped were people of color,

and in some districts, the odds of any given resident being stopped in a year was roughly

one in three. N

ORK

OLICE

’

, NYPD S

TOP

, Q

UESTION

AND

RISK

EPORT

ATABASE

, http://www.nyc.gov/html/nypd/html/analysis_and_planning/stop_question_and

_frisk_report.shtml (last visited Feb. 8, 2012).

For one of many sources on this, see, for example, Bradford P. Wilson, The Fourth

Amendment as More than a Form of Words: The View from the Founding, in T

ILL OF

IGHTS

: O

RIGINAL

EANING AND

URRENT

NDERSTANDING

151 (Eugene W. Hickok,

Jr. ed., 1991). As Wilson describes, “[t]here is no reason to believe that the draftsmen of

the Constitution gave specific attention to the problems of implementation. . . . [T]he

Constitution was to be implemented in accordance with the remedial institutions of the

common law.” Id. at 156 (quoting Alfred Hill, Constitutional Remedies, 69 C

OLUM

. L. R

1109, 1131–32 (1969)).

This Article does not discuss claims of expanding sovereign immunity made by

Engdahl and others. The focus here is on expanding immunity for officers personally.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 20 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 151

Indeed, immunization means that government is allowing its officer to

act unlawfully without being held liable. This Section discusses how

such immunization increasingly came to threaten the original system

of constitutional remedies.

There is a certain philosophy or attitude that underlies a regime

where officers are held strictly liable for unconstitutional acts even

when doing so in good faith or in the context of following orders.

Indeed, this regime may seem jarring to laypersons and lawyers today.

As mentioned earlier, while such potential unfairness gave Chief

Justice Marshall pause in Little v. Barreme, ultimately he (and courts

throughout the nineteenth century) believed that the question was to

be decided legally, as opposed to morally.

As one court put it, the

officer’s view of the constitutionality of a statute “is, in a legal point of

view, of no consequence.”

Eventually, however, scholars began to question this regime as a

fiction,

and often an unfair one. One scholar put it plainly: “If the

legislature enacts a statute which it has no power to enact, or does so

in a manner forbidden to it, the inferior officers in the judicial and

administrative branches of the government should not pay for the mis-

take.”

As the twentieth century progressed, commentators began to

share this apprehension.

As notions of fairness began to compete

with a rigorous application of the formal ultra vires logic, the doctrine

of officer liability wavered, and the enumeration principle seemed

threatened.

See supra notes 52–53 and accompanying text (describing Justice Marshall’s moral

ambivalence regarding the legal outcome in Barreme).

Clark v. Miller, 54 N.Y. 528, 532 (1874) (disregarding the view shared by both defen-

dant and officer that a law was unconstitutional) (emphasis added).

See, e.g., Kenneth Culp Davis, Suing the Government by Falsely Pretending To Sue

an Officer, 29 U. C

. L. R

. 435, 435–38 (1962) (describing officer liability as a false

pretense for suing the government).

Oliver P. Field, The Effect of an Unconstitutional Statute in the Law of Public

Officers: Liability of Officer for Action or Nonaction, 77 U. P

. L. R

. 155, 188 (1929).

See, e.g., Oliver P. Field, Effect of an Unconstitutional Statute, 100 C

ENT

. L.J. 145, 150

(1927) (“After all, does it not seem sound to give private individuals and ministerial

officers the benefit of the view that statutes are to be obeyed until they are declared uncon-

stitutional?”); Jerry L. Mashaw, Civil Liability of Government Officers: Property Rights

and Official Accountability, 42 L

& C

ONTEMP

. P

ROBS

. 8, 15 (1978) (referring to the

regime of officer liability as based on “draconian principles”); Max P. Rapacz, Protection

of Officers Who Act Under Unconstitutional Statutes, 11 M

INN

. L. R

. 585, 603 (1927) (“It

is unfair and socially undesirable that the subordinate officers of the government should

assume the risk of constitutionality of legislative enactments.”); cf. Fleming James, Jr., Tort

Liability of Governmental Units and Their Officers, 22 U. C

. L. R

. 610, 615 (1955)

(noting a declining willingness of scholars and commentators to “defend the full extent of

governmental immunity” today, but doing so in a broader field of immunity than that con-

ferred for acting under authority of an unconstitutional law).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 21 21-MAR-12 13:28

152 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

Officer immunity rose from murky origins. Its history is notori-

ously complex,

and scholars have stumbled in telling it.

I tread

wearily into that thicket, thread in hand, stepping no farther than nec-

essary to demonstrate that the increasing complexity and prominence

of common law officer immunity had significant implications for the

adjudication of constitutional rights.

In 1791, official immunities were narrow and precisely selected.

For example, the common law provided varying forms of immunity to

judges acting within the scope of their jurisdiction.

A more promi-

nent example of immunity found express articulation in Article I,

Section 6, Clause 1 of the Constitution: “[F]or any Speech or Debate

in either House, [United States Senators and Representatives] shall

not be questioned in any other place.”

The idea here is simple:

Immunity is necessary both to encourage political discussion and

ensuing legislative activity and to discourage politically motivated

arrests.

See, e.g., Mashaw, supra note 77, at 10 (“[The] tale [of officer immunity] is indeed

long and ultimately ambiguous: the plot reflects a judicial preference for Joyce and Beckett

over Lardner and Twain.”).

Some of the best accounts are in Ann Woolhandler, Patterns of Official Immunity

and Accountability, 37 C

ASE

W. R

. L. R

. 396 (1986), and Jaffe, supra note 43.

As a preliminary matter, however, it is important to distinguish conceptually sover-

eign immunity from officer immunity. Sovereign immunity is a jurisdictional bar against

haling states into court without their consent. A suit against an officer should be dismissed

on grounds of sovereign immunity only if there is no cause of action against the officer

personally. See, e.g., Hans v. Louisiana, 134 U.S. 1, 21–22 (1890) (dismissing suit on

grounds of sovereign immunity because the contract was between plaintiff and State of

Louisiana). See generally Kian, supra note 37 (describing common law foundations of Hans

v. Louisiana). If a suit against a government official survives sovereign immunity—that is,

if the plaintiff spells out a cause of action against the individual defendant—officer immu-

nity may stand as a hurdle against recovery for the plaintiff. Officer immunity is a mis-

leading term insofar as it implies the doctrine is tied to personal jurisdiction. The officer is

not immune from being sued; rather, she is privileged against damage awards. While sover-

eign immunity withholds jurisdiction, officer immunity provides the officer with immunity

against damages.

See generally Engdahl, supra note 43, at 41–47 (reviewing official immunities).

See, e.g., Pierson v. Ray, 386 U.S. 547, 553–54 (1967) (“Few doctrines were more

solidly established at common law than the immunity of judges from liability for damages

for acts committed within their judicial jurisdiction.”). This immunity extended to a judge’s

decision about whether the court has jurisdiction, a somewhat entertaining recursion, but

any injury imposed by erroneous determinations can usually be allayed by the possibility of

appeal. See, e.g., Engdahl, supra note 43, at 43–47 (discussing application of judicial immu-

nity rule in various contexts where the bounds of jurisdiction are unclear).

U.S. C

ONST

. art. I, § 6, cl. 1.

Kilbourn v. Thompson, 103 U.S. 168 (1880), demonstrates how the contours of this

privilege are limited to lawmakers in their legislative capacities. There, the plaintiff had

sued members of the House for passing a resolution holding him in contempt. Though the

House lacked power to imprison the plaintiff, the Court held that official privilege pro-

tected the legislators from suit for false imprisonment. Id. at 205. Their unconstitutional

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 22 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 153

By the 1920s, however, states had begun expanding official immu-

nity to executive officers. This expansion happened slowly, perhaps

equitably, and almost without regard for the consequences that such

immunities would have on enforcing individual rights. All of this, but

not unnoticed.

The scholarly consensus is that officer immunity deci-

sively superseded the earlier regime of liability.

Prior to 1880 there

was nigh “absolute uniformity in holding officers liable for injuries

resulting from the enforcement of unconstitutional acts.”

But, by the

mid-twentieth century, “the so-called ‘common law’ notion of privi-

lege for executive officials was being endorsed by the most reputable

judges and scholars, and the whole line of American precedents to the

contrary had been virtually forgotten.”

Scholars, commenting on the

rise in crime and full-time police bureaucracies, also noted a “consid-

erable growth in law designed to increase the protection of society by

officials.”

The broader trend was noted in contemporary torts

treatises:

Even as to officers acting under an unconstitutional statute, which

can confer no jurisdiction at all, the courts are being driven slowly to

the view that the officer cannot be required to determine legal ques-

tions which would perplex a court, and that if he has acted in good

faith he must not be liable.

Indeed, that same treatise, decades later, spoke even more confidently

about that trend:

The more modern and better reasoned cases, with many still to the

contrary, have extended this [immunity] even to the protection of

officers who act under statutes subsequently declared to be uncon-

stitutional, reasoning that the mentality of the average policeman,

whose life is traditionally not a happy one, should not be charged

with the decisions of questions which baffle the best lawyers in the

land.

enactment, however, did not protect the officer—John Thompson, Sergeant-at-Arms for

the House—who took the plaintiff into custody. He was without defense and liable for

damages. Id. Congress subsequently reimbursed Mr. Thompson. See Act of Mar. 3, 1885,

ch. 359, 23 Stat. 446, 467 (providing for Thompson’s reimbursement “for expenses, labor,

and attention in respect to the said case”).

For examples of scholars pointing out this trend, see generally Field, supra note 76

and Rapacz, supra note 77.

Engdahl, supra note 43, at 52.

Rapacz, supra note 77, at 585.

Engdahl, supra note 43, at 52.

Jerome Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U.

. L. R

. 345, 363 (1935).

ILLIAM

L. P

ROSSER

, H

ANDBOOK OF THE

AW O F

ORTS

§ 25, at 153–54 (1941)

(emphasis added).

ILLIAM

L. P

ROSSER

, H

ANDBOOK OF THE

AW O F

ORTS

§ 25, at 128 (4th ed. 1971).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 23 21-MAR-12 13:28

154 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

The growth of immunity was no doubt real, but its implications for

enforcing constitutional rights were overstated. The reason is that

immunity grew mostly for when the officer was acting within the scope

of constitutionally permissible discretion. That kind of immunity—

whatever its merits—is not relevant here. What is relevant, however,

is that such immunity spilled over and was increasingly asserted with

success against claims that an officer was acting unconstitutionally.

The source of confusion lies primarily in the distinction between

unauthorized acts and discretionary acts,

famously discussed in

Marbury v. Madison.

The distinction is actually quite intuitive. The

government may do many things that harm individuals—for example,

tax them or enact bad policies—but there is a distinction between

harms that the Constitution allows the government to impose and

those that the government has no power to impose. In other words,

there is a difference between bad policy and unconstitutional law. The

enumeration principle, strictly applied, allows no justification for the

latter, but has nothing to say about the former.

This principle drove the distinction in Marbury. On the one hand,

where the “executive possesses a constitutional or legal discretion,

nothing can be more perfectly clear than that their acts are only politi-

cally examinable”

—that is, like a misguided tax policy, any conse-

quences or injuries flowing from the exercise of a legally authorized

discretion can only be remedied politically.

Read properly, this

means that officers cannot be held liable for acting within the realm of

discretion contemplated by law.

On the other hand, “where a spe-

cific duty is assigned by law, and individual rights depend upon the

performance of that duty, it seems equally clear that the individual

who considers himself injured, has a right to resort to the laws of his

The argument in the next Section is that the Court’s jurisprudence accounted for the

fact that growing officer immunities weakened common-law remedies and thus deflated

constitutional rights. For this narrative to be true, it is not entirely necessary that officer

immunities actually grow; rather, it is sufficient that jurists perceive immunities as growing

and thus threatening constitutional rights.

See, e.g., Kendall v. Stokes, 44 U.S. (3 How.) 87, 98 (1845) (holding that a “public

officer” cannot be held liable “where the act to be done is not merely a ministerial one, but

is one in relation to which it is his duty to exercise judgment and discretion; even although

an individual may suffer by his mistake”); William C. Mathes & Robert T. Jones, Toward a

“Scope of Official Duty” Immunity for Police Officers in Damage Actions, 53 G

. L.J.

889, 896–97 (1965) (discussing this distinction).

5 U.S. (1 Cranch) 137, 166 (1803).

Id. Alternatively, the plaintiff has a claim against the State, which cannot be sued

unless it waives sovereign immunity.

See F

REDERICK

OLLOCK

, A T

REATISE ON THE

AW O F

ORTS

157–58 (3d ed. 1894)

(discussing immunity for discretionary actions in the absence of negligence).

See, e.g., Engdahl, supra note 43, at 48 (discussing this principle in the context of

later cases).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 24 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 155

country for a remedy.”

The distinction is between cases where an

officer has discretion and where he does not.

There is theoretically

nothing besides the two sides of the immunity/liability coin: immunity

for acting within the appropriate bounds of discretion, strict liability

for acting outside of the authority enumerated by the Constitution.

100

Scholars have treated immunity for discretionary actions as per-

mitting that which the enumeration principle forbids: immunity for

doing something prohibited by the Constitution.

101

But the cases cited

throughout the scholarship generally do not stand for the proposition

that an officer is immune even when injuring someone in accordance

with an unconstitutional statute.

102

The question they ask is whether

Marbury, 5 U.S. (1 Cranch) at 166.

Scholars and treatises have protested this dichotomy, at least in its later applications,

as conceptually incoherent, “a way of stating rather than arriving at the result,” and “a

convenient device for extending the area of nonliablity without making the reasons

explicit.” Louis L. Jaffe, Suits Against Governments and Officers: Damage Actions, 77

ARV

. L. R

. 209, 218 (1963); see also P

ROSSER

, supra note 90, § 25, at 151–53 (1941)

(labeling this distinction “rather artificial and scarcely justifiable”).

It need not be incoherent, at least for purposes of understanding officer immunity.

There are two sources of law that limit an officer’s realm of discretion so as to render his

actions “ministerial” rather than “discretionary.” First, a statute may provide an officer

with particular, nondiscretionary duties. For example, in one case, city jailers were required

to “keep the jail clean and well ventilated, and in good sanitary condition at all times, and

free from bugs and vermin . . . with a bed and bedding cleanly and sufficient . . . .” Clark v.

Kelly, 133 S.E. 365, 369 (W. Va. 1926). The West Virginia court held that these were “all

positive duties,” not discretionary, and thus the jailer was “‘liable in damages to any one

specially injured either by his omitting to perform the task or duty, or by his performing it

negligently or unskillfully.’” Id. (quoting Henderson v. Smith, 26 W. Va. 829 (1885)).

Second, all government action is limited by the Constitution. Regardless of other obliga-

tions, an officer can never have discretion to violate the Constitution—any such action is

per se unauthorized, and exposes the officer to liability under the common law.

100

There is an important distinction between statutory authority and constitutional

authority. Statutory rights can be limited by officer immunity—this just amounts to

granting narrower statutory rights. Therefore, the West Virginia law mentioned in the pre-

vious footnote could, by judicial gloss or legislative amendment, be read to require a clean

jail, yet immunize officers for their negligence in providing that cleanliness. At that point,

there would be a right (to a clean jail), but no remedy against the officer. But of course,

statutory immunity would not protect him from actions that violate the Constitution, if any

were committed. This is because there is no legislative authority to authorize unconstitu-

tional actions by immunizing those who commit them.

101

See, e.g., Mathes & Jones, supra note 93, at 912 (not distinguishing between the two

ideas in concluding that “the expansion of the official immunity doctrine in recent times

makes individual police-officer liability more the exception . . . to what is really a general

rule of public officer immunity”); Mashaw, supra note 77, at 8 (discussing liability without

sensitivity to this distinction).

102

To argue otherwise, prominent authorities cite a decision by the Iowa Supreme

Court, Henke v. McCord, 7 N.W. 623 (Iowa 1880), as “the leading case” in support of the

view that officers should not be liable for injuries resulting from enforcement of unconsti-

tutional statutes. Rapacz, supra note 77, at 591–92. See also P

ROSSER

, supra note 90, § 25,

at 154 n.84 (citing Henke for the proposition that “if [the officer] has acted in good faith he

must not be liable”); Field, supra note 76, at 185–90 (drawing on case law in discussing

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 25 21-MAR-12 13:28

156 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

the officer has valid discretion to commit the precise action that alleg-

edly harmed the plaintiff—that is, whether the discretion exercised

was within the bounds of authority conferred to the government by

the Constitution. If the answer is yes, it follows that no constitutional

injury has been suffered, insofar as the judiciary is concerned.

103

But scholars were not entirely wrong. As officer immunity grew,

it spilled over into protecting officers who acted unconstitutionally.

Some states, like California, went as far as providing such officers with

statutory immunity.

104

Whereas precedent from the antebellum period

when officers should be subject to suit for acting on unconstitutional statutes). Rapacz’s

view is not entirely clear, as he cites Henke for this proposition, Rapacz, supra note 77, at

585–86, but later implies its shortcomings, id. at 594. The case does not support that view,

at least not when put in its specific legal context. In Henke, a justice of the peace had

issued a search-and-seizure warrant in accordance with a municipal ordinance, and a mar-

shal acted on the warrant and seized the plaintiff’s property. Henke, 7 N.W. at 623. The

Iowa Supreme Court, surprisingly, determined that the ordinance authorizing such war-

rants was “void for want of authority of the municipal corporation to enact them” but went

on to find that both the justice of the peace and the marshal were immune from liability.

Id. at 625.

Two wrinkles, neither novel in American legal tradition, explain this case. First, judges

have been historically afforded immunity for acting within their jurisdiction and capacity as

judges. Second, a historically-accepted ancillary immunity has been available for a seizure

that meets two conditions: (1) having been “issued by a court or officer having authority of

law to issue such process,” and there have been (2) “nothing on the face of the process

apprising the officer to whom it [was] delivered for service, that in the particular case there

was no authority for issuing it.” T

HOMAS

M. C

OOLEY

, A T

REATISE ON THE

AW O F

ORTS

OR THE

RONGS

HICH

RISE

NDEPENDENT OF

ONTRACT

199 (2d ed. 1888). In line

with this, the court in Henke premised the marshal’s immunity on the fact that the justice

had jurisdiction to issue the warrant, which was “regular on its face.” Henke, 7 N.W. at 626.

This is not inconsistent with the officer liability regime discussed earlier. See supra

notes 82–84 and accompanying text. Here, when sued, the marshal could indeed point to a

valid authority: a warrant issued by a court of competent jurisdiction. That the court, prop-

erly exercising jurisdiction, erred in its legal conclusion about the ordinance was not mate-

rial. The officer was not relying on the unconstitutional or void statute, but rather on the

validly issued warrant. In other words, the warrant, issued by a competent court and not

erroneous on its face, did confer authority to the officer for the seizure. Persuasive or not,

this was not a new distinction—indeed, it was inherent to the separation of powers—and

posed no threat to the enumeration principle at large. The Court would later build this

exception into the exclusionary rule. See United States v. Leon, 468 U.S. 897, 926 (1984)

(expanding the exception where officers had relied on a seemingly valid warrant as the

exclusionary rule’s purposes would “only rarely be served by applying it” in such cases).

103

Of course, the plaintiff could pursue any number of political remedies such as peti-

tioning Congress. P

OLLOCK

, supra note 96, at 155 (“[T]he remedy of the party who suffers

the loss is confined to recovering such compensation . . . as the Legislature has thought fit

to give him.”).

104

According to the California Civil Code:

A State, county, district or municipal officer . . . or any officer, agent, or

employee of any political subdivision, acting in good faith and without malice

under the apparent authority of any law of this State, whether enacted by the

Legislature or by the people of the State through initiative action, which law

subsequently is judicially declared unconstitutional, as in conflict with the

Constitution of this State or of the United States, shall not be held civilly liable

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 26 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 157

held officers liable for serving process under an unconstitutional

statute—recall the Sergeant-at-Arms in Kilbourn—the weight of state

court authority had significantly shifted by the 1920s.

105

Other cases

simply contradicted the enumeration principle. For example, in Dexter

v. Alfred, the plaintiff sued a town’s highway commissioner for cutting

fallen trees on his land, removing them from roads, and laying out a

“public highway across the lands mentioned in the plaintiff’s com-

plaint.”

106

Notwithstanding a century of precedent otherwise, the New

York court held that the defendant could claim an unconstitutional

statute as his defense:

The defendant, in his answer in this case, undertakes to justify or

mitigate the alleged trespass committed by him . . . on the ground

that the commissioner of highways was acting under and in pursu-

ance of the provisions of this act, while it was in force, and before it

was adjudged to be unconstitutional, and that the defendant was

acting under the orders of the commissioner. It was no part of the

duty of the commissioner of highways to decide whether the law in

question was or was not constitutional. His duty was to execute the

law as he found it.

107

To reach this result, the court cited an earlier New York case

asserting that “[u]nder our system of government no power is given to

public officers to refuse or suspend their obedience to laws on any

opinion of their own that a law is unconstitutional.”

108

There, how-

ever, the court was reasserting a well-established principle designed

for a slightly different context: An officer is liable for refusing to act

under authority he believes to be unconstitutional if the authority in

fact constitutionally imposed a non-discretionary duty on the

officer.

109

The view in Dexter, while increasingly common throughout the

states,

110

was by no means uniform, not even in New York, which

in any action in which he would not have been liable if such law had not been

declared unconstitutional, nor shall he be liable to any greater extent than he

would have been if such law had not been declared unconstitutional.

. C

ODE

§ 3342 (1933). To my knowledge, the constitutionality of this immunity

was not tested.

105

Field, supra note 76, at 180 (noting the shift in state court authority by writing about

contemporaneous developments in the law regarding officer liability).

106

Dexter v. Alfred, 19 N.Y.S. 770, 770 (1892).

107

Id. at 771.

108

Clark v. Miller, 54 N.Y. 528, 532 (1874).

109

Id.; see also Field, supra note 76, at 158–65 (summarizing similar cases regarding an

officer’s refusal to act).

110

Another notable example is Goodwin v. Guild, 29 S.W. 722 (Tenn. 1895). There, the

Tennessee court reasoned:

While we would not be understood as going to this length, still it will not do to

apply the same strict rules of liability to an executive officer, whose duty it is to

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 27 21-MAR-12 13:28

158 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

floundered from case to case.

111

For example, cases almost uniformly

held officers liable when dealing with unconstitutional taxes or war-

rantless arrests conducted under unconstitutional statutes.

112

However, even in the latter cases, state courts expanded officer immu-

nity by massaging other doctrines to that end. For example, the

common law rule was that officers were liable for warrantless arrests

unless they could otherwise point to a felony or breach of the

peace.

113

Courts gave more robust interpretations to those exceptions

in order to confer immunity on officers making otherwise illegal

arrests. For example, courts began interpreting traditional misde-

meanors to be felonies in order to legalize arrests made without a war-

rant.

114

Moreover, in many jurisdictions, a conviction became “a

complete defense to an action of false arrest or imprisonment, on the

ground that it establishes a conclusive presumption of probable

cause.”

115

And that was the trend, overstated but increasingly true.

116

see the laws executed, if he makes a mistake in judgment, that would be

applied to an individual who has no public duty to perform in executing its

laws. To hold this strict rule would paralyze the arm of every executive and

peace officer; and while such officer, for any wanton or malicious abuse of

legal process which is set on foot for the oppression of a citizen, must be held

liable to the same, or possibly a greater, extent than a private individual, still

there must be undoubted evidence of malice, oppression, and wanton persecu-

tion, with the absence of all probable cause or excuse, to hold a public official

liable for errors in the execution of his official duties.

Id. at 723; cf. Shafford v. Brown, 95 P. 270, 271 (Wash. 1908) (upholding the defendant’s

demurrer on the grounds that he was “acting in good faith under a statute of the

Legislature [and] . . . doubtless supposed it to be a valid statute”); Lang v. Mayor of

Bayonne, 68 A. 90, 93 (N.J. 1907) (“Every law of the Legislature, however repugnant to

the Constitution, has not only the appearance and semblance of authority, but the force of

law.”); Field, supra note 76, at 167–70 (similar). See generally Rapacz, supra note 77 (dis-

cussing similar cases).

111

See, e.g., Saratoga State Waters Corp. v. Pratt, 125 N.E. 834 (N.Y. 1920) (granting an

injunction against state officers to prevent them from interfering with the plaintiff’s land,

and awarding damages to compensate for past interferences with that land); see also Field,

supra note 77, at 156–57 (summarizing the state of the law with regard to the effect of

unconstitutional statutes).

112

Field, supra note 76, at 166–67, 170–73.

113

See, e.g., Tillman v. Beard, 80 N.W. 248, 248 (Mich. 1899) (referring to this proposi-

tion as so “elementary” that “[i]t is needless to cite authorities”).

114

Id. This marked a shift away from the Restatement’s position. Caleb Foote, Tort

Remedies for Police Violations of Individual Rights, 39 M

INN

. L. R

. 493, 504 n.65 (1954).

115

Foote, supra note 114, at 506.

116

This trend continues today. For example, the Indiana Supreme Court recently held

that “a right to resist an unlawful police entry into a home is against public policy and is

incompatible with modern Fourth Amendment jurisprudence . . . .” Barnes v. Indiana, 946

N.E.2d 572, 576 (Ind. 2011), thus admittedly abandoning the “common-law right to resist

unlawful police action [that has] existed for over three hundred years, and [which] some

scholars trace . . . to the Magna Carta in 1215.” Id. at 575. Of course, this violates the

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 28 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 159

B. Pragmatics

The common law remedies also withered practically. Over time,

the prospect of actual monetary recovery diminished, sinking with it

the prospect of continuing to enforce the Constitution through state

common law. It seems obvious that constitutional rights are

threatened by a regime where officers are prohibited from acting

unconstitutionally but face no actual cost when they do so. This phe-

nomenon, despite being a critical change in how constitutional rights

are enforced, has received little empirical attention, and this Article

does not fill that gap.

117

Rather, it is sufficient for the Article’s pur-

poses to highlight the problem and the fact that scholars recognized it.

As the traditional remedy grew inadequate, the pressure to compen-

sate increased.

The seminal work here is an article by Caleb Foote, who

describes in some detail the practical challenges facing plaintiffs suing

officers.

118

There are two challenges worth recapitulating. First, in

order to remedy adequately the violation of constitutional rights, the

law must conceive of damages rather broadly. This is how it used to

be: Jurisdictions would allow for recovery of punitive damages, and

the jury was given “wide scope in attaching a dollar value to

immeasurables such as the sense of humiliation, distress, disgrace or

outrage, or the usually fictional damages to reputation.”

119

But that

changed, even where officer immunities were not triggered. Those suf-

fering from illegal searches and false imprisonment

120

—where the

officer detained and searched the individual without any valid

enumeration principle unless the same rule applies to all intruders—in which case no one

could use reasonable force against any unlawful intruder. To give the officer special legal

protection in this context violates the Fourth Amendment, which stands for the proposition

that the government is not authorized to unlawfully search or seize and thus, when it does,

the perpetrating officer can enjoy no legal privilege and will be treated as any other indi-

vidual trespasser. The core result of the enumeration principle is that when an officer does

something unconstitutional, he will be treated like any other person. On a different front,

the trend also manifests itself today in the ever-broadening privileges to which members of

government believe themselves entitled. See, e.g., Lacey, supra note 40 (recounting

instances where lawmakers claim immunity for drunk driving, domestic violence, and

speeding).

117

See, e.g., Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its

Consequences for the Individual Liability Model, 62 S

TAN

. L. R

. 809, 813 (2010) (repre-

senting “the first attempt to systematically study the success of Bivens litigations”).

118

Foote, supra note 114.

119

Id. at 497; see also, e.g., Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.) 807; 2

Wils. K.B. 275 (providing large sum of damages for trespass).

120

“False imprisonment” is a legal term of art that refers to “imposing, by force or

threats, an unlawful restraint upon a man’s freedom of locomotion.” T

HOMAS

M. C

OOLEY

A T

REATISE ON THE

AW O F

ORTS OR THE

RONGS

HICH

RISE

NDEPENDENTLY OF

ONTRACT

§ 80 (students’ ed. 1907).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 29 21-MAR-12 13:28

160 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

constitutional authority—found their lawsuits recovering little more

than a penny.

121

As Foote noted, by the 1950s, this trend had long

buried the trespass action and was beginning to overcome the false

imprisonment action as well.

122

The second challenge is related: The plaintiffs in such cases were

perceived as increasingly less sympathetic. Foote argues that this per-

ception was responsible for the declining damages awards. At one

level of abstraction, this is no doubt correct.

123

The jury’s perception

of the equities (or the judge’s, in a bench trial) had always been

implied in a system where constitutional remedies were enforced

through civil actions and, in particular, actions in tort law.

124

As the

twentieth century unfolded, those most often litigating their individual

rights against officers were of a different sort than the esteemed

merchants bringing trespass suits against British officers in the eight-

eenth century. Rather, they were criminals,

125

drug offenders, minori-

ties of various sorts, and strangers in increasingly estranged

121

See, e.g., Lowry v. Barker, 190 S.E. 341 (N.C. 1937) (affirming the jury’s award of

only one penny in suit against the officer for unlawful arrest, false imprisonment, assault,

and battery); Clements v. Canon, 40 P.2d 640 (Okla. 1935) (affirming the jury’s award of

one dollar for two unlawful arrests and false imprisonment lasting several hours in the first

instance and overnight in the second instance); McLean v. Sanders, 7 P.2d 981 (Or. 1932)

(reversing award of no damages where the jury found false imprisonment but awarded the

plaintiff nothing, because the verdict for the plaintiff should reward at least nominal dam-

ages lest it be considered a verdict for the defendant); Moore v. Duke, 80 A. 194 (Vt. 1911)

(reversing the punitive damages award of $19.33 and awarding the plaintiff one dollar for

the trespass action against the town constable); Foote, supra note 114, at 498–99 nn.33, 35

(citing two Maryland cases and a Louisiana case where nominal damages were awarded). It

is noteworthy that Maryland would have admitted the evidence recovered from such illegal

searches. See id. at 500 n.42 (citing a Kansas case where the court directed a verdict for the

defendant on the grounds that the plaintiff, having a prior criminal record, could not

recover damages for having been humiliated by false arrest).

122

Foote, supra note 114, at 499 (noting that if this trend continues “false imprisonment

will join trespass for illegal search in the graveyard of useless remedies”).

123

See, e.g., id. at 500 n.42 (providing an example of social stigma preventing recovery

for a plaintiff’s false imprisonment claim).

124

See, e.g., Ker v. Illinois, 119 U.S. 436, 444 (1886) (noting in dicta that whether one

could recover a sufficient sum by bringing a suit for trespass or false imprisonment “would

probably depend upon moral aspects of the case”).

125

Local evidence law was particularly relevant here, as defendants could present evi-

dence of “previous arrests and time spent in jail” for purposes of mitigating damages stem-

ming from humiliation and mental anguish. 35 C.J.S. False Imprisonment § 63 (2009). As

Foote noted, common law actions like false imprisonment are “successful as an inducement

to sue only for the respectable plaintiff who can come into court with relatively clean

hands.” Foote, supra note 114, at 500. It was particularly problematic for plaintiffs that if

the transgressions nonetheless resulted in a conviction, that conviction could “be shown to

impeach the plaintiff’s credibility as a witness.” Id. at 506. Moreover, those in prison often

“must wait until they are released to get their tort remedy.” Id. at 508.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 30 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 161

communities, citing liberties that were increasingly seen as in tension

with local security.

126

The result of these two factors is, as one court put it, that “cases

involving civil actions against police officers are rare and those

involving successful criminal prosecutions against officers are nonexis-

tent. In short, the constitutional provisions are not being enforced.”

127

As another noted, despite

general knowledge of the prohibition against unlawful search, it is

not an uncommon thing in this state, for officers of the law . . . to

disregard the law upon the assumption that the end sought to be

accomplished will justify the means, and therefore no attention

need be given to constitutional authority, when public approval will

commend the unlawful conduct.

128

C. The Common Law in a New World

Finally, it is worth noting that the common law’s conception of

actionable injuries did not keep in neat accord with those contem-

plated by the Constitution. The easiest example is Katz v. United

States, in which the Court found an actionable Fourth Amendment

injury in warrantless wiretapping.

129

Such an injury was not necessa-

rily a cognizable injury at common law.

130

Similar problems exist with

126

As an anecdotal matter, it is interesting to note that state cases grew more explicitly

cognizant of law enforcement values. See, e.g., Mason v. Wrightson, 109 A.2d 128, 129 (Md.

1954) (beginning opinion by noting Baltimore’s interest in “combat[ting] . . . lawlessness”);

Youman v. Commonwealth, 224 S.W. 860, 861 (Ky. 1920) (“[T]here appears to be a

growing public sentiment against the observance of or obedience to any constitutional

restraint that obstructs or stands in the way of the desires of [officers] who seek to accom-

plish their purposes . . . .”); cf. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson,

J., dissenting) (mentioning the difficulties that automobile searches presented for law

enforcement, and implying that the Court had become too sensitive to those difficulties).

127

People v. Cahan, 282 P.2d 905, 913 (Cal. 1955) (en banc), superseded by statute, C

ONST

. art. I, § 28, pt. (d), as recognized in People v. Daan, 161 Cal. App. 3d 22, 26–27

(1984).

128

Youman, 224 S.W. at 861; see also Hoyer v. State, 193 N.W. 89, 93 (Wis. 1923) (refer-

ring to a trespass action against officers as “bootless and fruitless”).

129

389 U.S. 347 (1967).

130

The term “common law” is used to refer to the common law of the several states. Of

course the law varied by state, but the point here is that this fragmented approach frus-

trated the judicial enforcement of constitutional law. With dozens of different approaches,

the robustness of the Constitution’s protections in any given state became delegated to the

niceties of local common law. Thus, even scholars advocating a common law-esque

approach to the Fourth Amendment recognize that actions like wiretapping would have to

be cognizable. See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 H

ARV

L. R

. 757, 798 (1994) [hereinafter Amar, Fourth Amendment] (characterizing wiretap-

ping as a modern supplement to the traditional trespass rule).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 31 21-MAR-12 13:28

162 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

countless other technologies, including, for example, the introduction

of photocopiers.

131

There was also the problem of the awkward fit between policies

pursued by the common law and those required by the Constitution,

which became particularly apparent with the civil rights movement.

For example, perhaps the common law would settle for damages paid

to those suffering from segregated schools (by viewing them as being

excluded from a property to which they rightfully have a license), but

the Constitution would not.

132

Integration was the mandate. These

kinds of tensions rendered the common law a less and less appealing

system by which to judicially enforce the Constitution, as they placed

constitutional rights valued one way at the whim of local common

laws that might value them in another.

III

ETHINKING

ORE

ECISIONS OF

ONSTITUTIONAL

MPLEMENTATION

Thus far, this Article has introduced the original system of

common law remedies and described how this system began to break

down. In the backdrop of these changes lurked federalism’s elephant:

the Civil War. As embodied in the Madisonian Compromise,

133

prior

to the Civil War states were generally believed to be the protectors of

constitutional rights. Thus, it made perfect sense for the common law

to provide remedies for violations of constitutional rights. But the

issue of slavery, the brutality of the Civil War, and the persistence of

racial prejudice through Jim Crow taught the nascent Republic that all

governments, whether state or federal, could pose a threat to liberty.

These developments fundamentally changed the perception of the

131

See Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) (dealing with the

problem of police officers making photocopies of private documents that they were not

allowed to have). For a modern example, see generally Orin S. Kerr, Applying the Fourth

Amendment to the Internet: A General Approach, 62 S

TAN

. L. R

. 1005 (2010). Professor

Kerr suggests that judges should distinguish between content and non-content information

and limit search warrants to individuals, rather than Internet accounts.

132

See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (requiring desegregation). Of

course, the proper analysis at common law would require injunctive relief here because

damages would be inadequate, but there was no guarantee that a state would arrive at this

conclusion. And that is the point: Leaving the enforcement of constitutional rights to the

common law creates a tension, particularly when common law policies are not in perfect

accord with the contours of constitutional rights.

133

That is, the founding agreement that Congress would have discretion over whether

to create federal courts other than the Supreme Court. See Amanda Frost, Overvaluing

Uniformity, 94 V

. L. R

. 1567, 1620–22 (2008) (describing how the Madisonian

Compromise, in delegating to Congress the decision to create lower federal courts, com-

prehended the possibility that Congress would create no lower federal courts, thus leaving

the interpretation of federal law to state courts).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 32 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 163

federal government’s role in protecting individual rights, such that

federal courts were increasingly called into action. This made the

decline in common law remedies all the more significant.

There were two factors in particular that were consequential:

First, the growth of the federal government and the number of federal

officers, and second, the incorporation of the Bill of Rights. These

changes created a situation in which an exponentially increasing

potential for constitutional violations was left to a system of common

law remedies that no longer neatly aligned itself with the contours of

constitutional law and policy. This Part will examine how that dynamic

structured the Supreme Court’s response, in three cases: Mapp v.

Ohio,

134

Monroe v. Pape,

135

and Bivens v. Six Unknown Named

Agents.

136

There are two arguments to be made here. The first is more basic:

Simply looking at the relationship between common law remedies and

constitutional rights will yield interesting insights. The discussion of

the exclusionary rule that follows demonstrates this vividly. The

second point is more the focus of this Article: The weakening of

common law remedies discussed in Part II created a set of tensions

that the Court was forced to address. The thesis is not, however, that

the Court consciously undertook a project to revitalize constitutional

rights. It is, instead, more subtle: The weakening remedies actually

had doctrinal significance that in turn affected the salience and per-

suasiveness of the arguments that the Court ultimately adopted in

these three cases.

A. The Exclusionary Rule

There is hardly a constitutional debate more robust than that

inspired by the Fourth Amendment exclusionary rule.

137

The basic

idea behind the exclusionary rule is simple: Evidence obtained in vio-

lation of the Fourth Amendment will be inadmissible as evidence in a

criminal trial. Defenders of the exclusionary rule argue that it is the

only meaningful way to realize the Fourth Amendment right.

138

Detractors respond that the rule is judge made, extratextual, and

134

367 U.S. 643 (1961).

135

365 U.S. 167 (1961).

136

403 U.S. 388 (1971).

137

So robust, in fact, that contemporary scholarship begins with this proposition, then

cites the footnotes of previous articles making the same assertion. In that tradition, see

Yale Kamisar, The Writings of John Barker Waite and Thomas Davies on the Search and

Seizure Exclusionary Rule, 100 M

ICH

. L. R

. 1821, 1821 n.3 (2002).

138

Some have argued that this intuition is in accord with history. For a particularly

exhaustive and recent example, see generally Roger Roots, The Originalist Case for the

Fourth Amendment Exclusionary Rule, 45 G

ONZ

. L. R

. 1 (2010).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 33 21-MAR-12 13:28

164 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

simply bad policy. This debate has characterized the exclusionary rule

as a policy tool—a mere policy tool—drafted by the Court and

wielded to service the Fourth Amendment right.

139

Accordingly, the

Court has characterized the rule as “prudential rather than constitu-

tionally mandated,” and only applicable “where its deterrence bene-

fits outweigh its ‘substantial social costs.’”

140

Scholarly discussion has

followed suit, as has legal education. Those interested in that debate

will not be disappointed by the quality of scholarship devoted to its

resolution, but this Article does not attempt to resolve these

disagreements.

The focus of this Article is to describe the exclusionary rule as

partly a consequence of the common law remedies discussed above.

Modern legal minds draw sharp distinctions between criminal and civil

law. Criminal procedure textbooks devote at most a few pages to the

relationship between criminal procedure and the common law, and

the pages they do devote frame common law remedies as yet another

alternative to the exclusionary rule. While that framework is not

incorrect,

141

it does not capture the intricate role that common law

remedies played in defining Fourth Amendment rights.

The following Sections operate in tandem to fill that gap. This

Article will first explain how various common law doctrines interacted

to generate the federal exclusionary rule. As it turns out, the federal

exclusionary rule was not a made-up policy crutch for the Fourth

Amendment right. The exclusionary rule actually came to being

through problems created by the enumeration principle’s core ques-

tion: Does the government have constitutional authority for what it is

doing? For example, if a court ordered an unreasonable seizure of a

139

See, e.g., Amar, Fourth Amendment, supra note 130, at 785 (characterizing the Court

as having “concocted the awkward and embarrassing remedy of excluding reliable evi-

dence of criminal guilt”); Randy E. Barnett, Resolving the Dilemma of the Exclusionary

Rule: An Application of Restitutive Principles of Justice, 32 E

MORY

L.J. 937, 939 (1983) (“A

remedy is needed that accomplishes the objectives of crime prevention and justice and that

deters police misconduct as well as or better than the exclusionary rule. The growing sup-

port for a weakening of the exclusionary rule by the creation of a so-called ‘good faith

exception’ may make it a propitious time for those concerned with deterring police miscon-

duct to pursue such an alternative vigorously.”); cf. Richard A. Posner, Excessive Sanctions

for Governmental Misconduct in Criminal Cases, 57 W

ASH

. L. R

. 635, 646 (1982)

(arguing that courts “have been guided by concerns articulable, if rarely articulated, in

terms of economic efficiency”).

140

Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (quoting United States v.

Leon, 468 U.S. 897, 907 (1984)); see also Stone v. Powell, 428 U.S. 465, 489 (1976) (“The

answer [to the question of whether to apply the exclusionary rule] is to be found by

weighing the utility of the exclusionary rule against the costs of extending it to collateral

review of Fourth Amendment claims.”).

141

Indeed, we are not in the realm of incorrect versus correct. We are instead looking

for useful ways to understand what happened in the Fourth Amendment world.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 34 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 165

defendant’s papers, and the defendant objected, the enumeration

principle would require the objection to be upheld, because there is

no authority on which to uphold such an order.

A more familiar scenario is when an officer seizes evidence

before a trial has even begun. This, as the Article will demonstrate,

gets tricky. Suppose an officer unreasonably seizes a defendant’s

dagger and decides that he will hold the weapon until the government

prosecutes the defendant several months later. If, prior to the criminal

trial, the defendant were to sue the officer for return of his dagger, the

officer would need some sort of defense for why he could in fact keep

it. But if he acquired it by constitutionally-prohibited means, he would

have no defense. What he needs is a lawfully-acquired license to the

property. He could not say, “the government authorizes me to keep

evidence seized by means the Constitution prohibits,” because the

Constitution specifically denies the government that power.

As it turns out, the defendant has a cause of action in property

against the officer. But it is not that simple. Suppose the defendant

waits until the criminal trial and only then objects to the introduction

of the dagger as evidence. Historically, he would lose: Prosecutors and

officers are authorized to introduce evidence, and a criminal trial is

not the place to stop and sort out property rights. If the defendant had

a property claim, he could file that claim in another action, but he

could not do so in the middle of a criminal trial.

Eventually, what started as a rule of property became a rule of

evidence because of both the Fourth and Fifth Amendments. Below,

the first Section will trace this transformation and provide a nuanced

account of how the federal exclusionary rule came to be. The Section

that follows explains how the Court eventually incorporated the exclu-

sionary rule against the states.

The point of these two Sections is to illustrate how the path of

various constitutional rights was intimately shaped by the path of the

common law. As we go through this history, we should keep in mind

that common law remedies for constitutional rights have diminished

over time.

142

This is important because if constitutional rights are

shaped by the common law (which the next Section demonstrates in

the context of the exclusionary rule), then the dwindling availability of

common law remedies threatens to deflate constitutional rights.

This withering of remedies posed a major challenge to the Court:

To what extent could it allow changes in the common law to squeeze

constitutional rights? The Court had to decide if the common law was

142

See supra Part II (describing factors that led to the withering of common law

remedies).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 35 21-MAR-12 13:28

166 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

severable from constitutional law or if, to some extent, constitutional

law required the preservation of some common law remedies (perhaps

as necessary for due process of law). The second Section below

explains how the Court handled this problem in the context of incor-

porating the right against unreasonable searches and seizures. In

short, the Court “constitutionalized” the exclusionary rule, both in

federal and state courts, by making it a constitutional requirement

rather than a remedy available solely by virtue of state property law.

1. The Federal Exclusionary Rule

The assumption in Fourth Amendment scholarship

143

is that

Boyd v. United States

144

and Weeks v. United States

145

introduced the

exclusionary rule into federal practice, and these cases were later

incorporated against the states by Mapp v. Ohio.

146

Before these

cases, the story goes, there was no exclusionary rule and, in fact, the

exclusionary rule was specifically precluded by the evidentiary prin-

ciple that allowed evidence to be admitted regardless of how it was

obtained.

147

In light of this understanding of contemporary doctrine,

Boyd, Weeks, and Mapp are at best judicially creative and at worst,

terrible judge-made policy. Few, if any, scholars have studied how

these cases may have resulted from the dynamics created by

employing common law principles to enforce constitutional values.

The result is a general understanding that the exclusionary rule was a

remedy devised haphazardly by judges interested in preserving the

Fourth Amendment’s policies. As one scholar put it, the exclusionary

rule “is the product of a series of decisions by the United States

Supreme Court which may be traced back to Boyd v. United

143

See, e.g., Amar, Fourth Amendment, supra note 130, at 787 (“The confusion began

with the Supreme Court’s landmark 1886 case, Boyd v. United States.”); Barnett, supra

note 139, at 938 n.2 (characterizing the exclusionary rule as a “court-created rule,” devised

in Boyd and Weeks); Audrey S. Brent, Illegally Obtained Evidence: An Historical and

Comparative Analysis, 48 S

ASK

. L. R

. 1, 20 (1984) (calling Weeks a “landmark judg-

ment” in “a new era of judicial interpretation”); Thomas Y. Davies, Recovering the

Original Fourth Amendment, 98 M

ICH

. L. R

. 547, 556 (1999) (beginning the narrative of

the exclusionary rule with Weeks); Roots, supra note 138, at 1 (“The Fourth Amendment

exclusionary rule has been the law of the land in all federal jurisdictions since 1914 and in

all state jurisdictions since 1961.”); Lyle Denniston, Argument Preview: Police and

Changing Law, SCOTUS

BLOG

(Mar. 18, 2011, 3:42 PM), http://www.scotusblog.com/2011/

03/argument-preview-police-and-changing-law/ (“[The exclusionary rule] began[ ] in the

1914 case of Weeks v. U.S. . . . .”).

144

116 U.S. 616 (1886).

145

232 U.S. 383 (1914).

146

367 U.S. 643 (1961).

147

See, e.g., Commonwealth v. Dana, 43 Mass. (2 Met.) 329, 337 (1841).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 36 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 167

States.”

148

Akhil Amar, for example, criticizes the exclusionary rule as

a “concocted[,] . . . awkward and embarrassing remedy”

149

that is

essentially divorced from the “text, history, or structure of the Fourth

Amendment.”

150

In his view, “the Amendment presupposes a civil

damage remedy, not exclusion of evidence in criminal trials.”

151

Amar’s perspective actually goes further than most in understanding

the relationship between the Constitution and the common law, but

artificially limits the nexus to civil damage remedies. The principal

contention of this Article is that a more comprehensive understanding

of that relationship yields a more nuanced understanding of how the

exclusionary rule came to be.

That story begins with a simple but frequently overstated prin-

ciple of evidence law: The method by which evidence is acquired does

not, as a matter of evidence law, affect its competency to be presented

in a criminal trial. This principle is iterated in state and federal court

opinions

152

and reiterated by leading evidence treatises.

153

148

Jerry E. Norton, The Exclusionary Rule Reconsidered: Restoring the Status Quo

Ante, 33 W

AKE

OREST

L. R

. 261, 263 (1998).

149

Amar, Fourth Amendment, supra note 130, at 785.

150

KHIL

EED

MAR

, T

ONSTITUTION AND

RIMINAL

ROCEDURE

: F

IRST

RINCIPLES

91 (1997).

151

Amar, Fourth Amendment, supra note 130, at 758; cf. William J. Stuntz, Warrants

and Fourth Amendment Remedies, 77 V

. L. R

. 881, 899 (1991) (“Before 1961 damages

were, in many states, the only sanction imposed for illegal searches and seizures.”).

152

For example, in Commonwealth v. Dana, the court reasoned that:

Admitting that the lottery tickets and materials were illegally seized, still this is

no legal objection to the admission of them in evidence. If the search warrant

were illegal, or if the officer serving the warrant exceeded his authority, the

party on whose complaint the warrant issued, or the officer, would be respon-

sible for the wrong done; but this is no good reason for excluding the papers

seized as evidence, if they were pertinent to the issue, as they unquestionably

were. When papers are offered in evidence, the court can take no notice how

they were obtained, whether lawfully or unlawfully; nor would they form a

collateral issue to determine that question.

43 Mass. (2 Met.) 329, 337 (1841) (emphases added). In People v. Adams, the court

explained: “The underlying principle obviously is that the court, when engaged in trying a

criminal cause, will not take notice of the manner in which witnesses have possessed them-

selves of papers or other articles of personal property which are material and properly

offered in evidence.” 68 N.E. 637, 638 (N.Y. 1903). The court in United States v. La Jeune

Eugenie, also reasoned similarly:

In the ordinary administration of municipal law the right of using evidence

does not depend . . . upon the lawfulness or unlawfulness of the mode, by

which it is obtained. If it is competent or pertinent evidence, and not in its own

nature objectionable, as having been created by constraint, or oppression, such

as confessions extorted by threats or fraud, the evidence is admissible on

charges for the highest crimes, even though it may have been obtained by a

trespass upon the person, or by any other forcible and illegal means. . . . In

many instances, and especially on trials for crimes, evidence is often obtained

from the possession of the offender by force or by contrivances, which one

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 37 21-MAR-12 13:28

168 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

Scholars have interpreted this principle as a rejection of the

exclusionary rule. Boyd and Weeks are seen as departures, partly

because the evidentiary principle seemed to reject exclusion so clearly

as an appropriate remedy. As Justice Story observed:

In the ordinary administration of municipal law the right of using

evidence does not depend, nor, as far as I have any recollection, has

ever been supposed to depend upon the lawfulness or unlawfulness

of the mode, by which it is obtained. . . . I am not aware, that such

evidence has upon that account ever been dismissed for

incompetency.

154

But this is not, in fact, a principle that rejected exclusion in general.

Rather, it was just a principle of evidence law. At trial, a defendant

could not raise an evidentiary objection to evidence based on the

legality of its acquisition, unless the evidence was created or acquired

by threat or fraud.

155

In other words, if officers illegally snuck into

every home in a neighborhood until they discovered a bloody dagger,

and then turned that dagger over to the local prosecutor, they would

be guilty of multiple trespasses. But evidence law would not be

employed to bar admission of the murder weapon in a prosecution

against its possessor.

Boyd and Weeks effectively excluded evidence without disturbing

this principle. The facts of these cases are critical. In Boyd, the district

attorney brought a charge against the defendant for forfeiture of

property. Then, at trial, “it became important to show the quantity

and value of the glass contained in twenty-nine cases previously

imported,” so the court then ordered the defendant, over his constitu-

tional objections, “to produce the invoice of the twenty-nine cases.”

156

The issue was whether the court could invoke a statute to order a

defendant to produce self-incriminating evidence at trial. And the res-

olution of such a question, as Justice Bradley reasoned, turned on

both the Fourth Amendment right against unreasonable searches and

seizures and the Fifth Amendment right against self incrimination.

157

There are two critical distinctions necessary to understanding

Boyd. First, it is not uncommon to understand the entire criminal

could not easily reconcile to a delicate sense of propriety, or support upon the

foundations of municipal law. Yet I am not aware, that such evidence has upon

that account ever been dismissed for incompetency.

26 F. Cas. 832, 843–44 (C.C.D. Mass. 1822).

153

See, e.g., 1 S

IMON

REENLEAF

, A T

REATISE ON THE

AW O F

VIDENCE

§ 254a

(Simon Greenleaf Croswell ed., 14th rev’d ed. 1883).

154

La Jeune Eugenie, 26 F. Cas. at 843–44.

155

See, e.g., Dana, 43 Mass. (2 Met.) at 337–38.

156

Boyd v. United States, 116 U.S. 616, 618 (1886).

157

Id. at 633–34.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 38 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 169

process—from investigation to arrest to jail—as a single process car-

ried out by the state. But this is not entirely accurate. Traditionally,

when an officer seized evidence, the legality of that seizure was con-

sidered a matter separate and independent from the criminal trial

where evidence would be employed.

158

If the officer violated the

Fourth Amendment to seize that evidence, he did so personally,

because the federal government cannot cloak him with authority to

violate the Constitution as an officer of the government. By contrast, a

trial is something that the government is authorized to conduct. This is

where the evidentiary principle would kick in: At trial, courts would

not inquire into whether evidence was lawfully obtained. If a police

officer acted unlawfully, that would be a collateral issue resolved by a

separate lawsuit against the officer, not by an objection to the compe-

tence of evidence. Similarly, criminal trials would not pause to adjudi-

cate whether the police officer used unreasonable force in making the

arrest.

In Boyd, this was not the case because it was not an officer but

the district court, in the course of trying the defendant for forfeiture,

that ordered the evidence to be produced as part of that trial.

159

The

defendant immediately made a constitutional objection to this order.

Thus, the defendant was not objecting to evidence as a proxy for chal-

lenging the lawfulness of a police officer’s prior actions. He was in fact

contemporaneously objecting to an order by the trial court. This did

not require the court to stop and assess the collateral matter of

whether a police officer had, in the past, personally wronged the

defendant. Rather, the court was asked to consider the legality of its

own order. The court erred in rejecting the objection, and the appro-

priate remedy was a retrial, with the evidence returned to the defen-

dant and excluded because the district court could not lawfully order

its production.

160

The district court was not allowed, during the defen-

dant’s trial, to order him to produce papers, when such an order vio-

lated his Fourth and Fifth Amendment rights. This was seen as

significantly different from stopping a criminal trial to decide the

158

That is why courts often denied exclusion on the grounds that it was a collateral

matter not appropriately before the court during the criminal trial. See, e.g., Dana, 43

Mass. (2 Met.) at 337 (“When papers are offered in evidence, the court can take no notice

how they were obtained, whether lawfully or unlawfully; nor would they form a collateral

issue to determine that question.” (emphasis added)).

159

Of course, this order was carried out by an officer, but the key point is that because

this was part of the forfeiture trial, it was not a collateral issue requiring separate

adjudication.

160

Cf. Adams v. New York, 192 U.S. 585, 594 (1904) (finding no Fourth Amendment

error where the defendant did not object to a supposedly illegal seizure until witnesses

began testifying, despite having notice of the seizure).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 39 21-MAR-12 13:28

170 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

separate, civil matter of whether the officer seeking to introduce the

evidence was a lawful possessor of the evidence in the first place.

This leads to a second critical distinction: The invoices demanded

by the court in Boyd were in the rightful possession of the defen-

dant.

161

This is important in understanding how the relevant doctrines

intersected. That the invoices were lawfully possessed by the defen-

dant was essentially irrelevant to whether the search was a Fourth

Amendment violation per se, but not irrelevant to the question of

remedy.

162

Had the defendant lacked rightful possession of the prop-

erty—for example, if the property were stolen—he would not necessa-

rily be able to demand its return, because the relevant causes of action

might require the plaintiff to show that he had rightful possession of

the seized items. If the goods were stolen, his remedy would not be

return of the goods, but recovery in damages, assuming an unautho-

rized trespass,

163

and exclusion insofar as there was a Fifth

Amendment violation.

164

This second distinction helps shed light on Weeks v. United

States,

165

a case commonly, understandably, but erroneously cited as

fashioning a novel exclusionary rule for federal criminal trials.

166

The

case, decided by a unanimous Court, did something far less. There, the

defendant was arrested at his workplace while other officers raided his

home without warrant, taking “possession of various papers and arti-

cles found there.”

167

Before the trial, the defendant filed a petition

161

116 U.S. at 622–23.

162

It was also relevant to the Fifth Amendment right. Id. at 633 (“And we have been

unable to perceive that the seizure of a man’s private books and papers to be used in

evidence against him is substantially different from compelling him to be a witness against

himself.”).

163

As the Court pointed out in Boyd, the common law recognized many instances in

which seizure of a stolen or counterfeited good was not unreasonable. 116 U.S. at 623–24.

This only meant, however, that the primary constitutional question turned on whether

there was an unreasonable search or seizure, as the Fourth Amendment required.

164

It is worth clarifying the role of the Fifth Amendment here. There are two kinds of

self incrimination for purposes of that Amendment. The first is requiring the defendant to

take the stand, in response to which an objection at trial is appropriate. That evidence is

immediately excluded; if it is not, the defendant has grounds on which to seek a mistrial.

The second is unreasonably seizing the defendant’s property as evidence against him.

Because that approach turns on a Fourth Amendment question, it is incumbent upon the

defendant to petition for return of his property—that is, to seek a Fourth Amendment

remedy, first. He could not raise a Fifth Amendment issue during the criminal trial without

first seeking the Fourth Amendment remedy. Otherwise he would be collaterally attacking

the competency of evidence with an issue not relevant to the criminal trial itself.

165

232 U.S. 383 (1914), overruled by Mapp v. Ohio, 367 U.S. 643 (1961).

166

See Wolf v. Colorado, 338 U.S. 25, 28 (1949) (characterizing the exclusionary rule as

having been “made for the first time in 1914”), overruled by Mapp v. Ohio, 367 U.S. 643

(1961).

167

Weeks, 232 U.S. at 386.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 40 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 171

demanding return of his “[p]rivate [p]apers, [b]ooks, and [o]ther

[p]roperty.”

168

The district court ordered “the return of such property

as was not pertinent to the charge against the defendant,” but denied

the petition insofar as the property was pertinent to trial.

169

As a pre-

view of why the Supreme Court reversed this decision, we should ask

a tricky enumeration question: If the property belonged to the defen-

dant, and it was obtained by the officers in violation of the Fourth

Amendment, then how could the district court authorize the govern-

ment to retain possession of the defendant’s property when he

became a plaintiff properly filing for its return? In other words, how

did the government obtain a license to keep his property for the dura-

tion of the trial?

In addressing the Fourth Amendment claim, the unanimous

Court stressed that this case was not about “testimony offered at a

trial where the court is asked to stop and consider the illegal means by

which proofs, otherwise competent, were obtained.”

170

The case was

about whether the court could “retain for the purposes of evidence”

an accused individual’s property when that individual “without

awaiting his trial, made timely application to the court for an order for

the return of . . . [his] property.”

171

This is a property question: How is

the government keeping possession of the property? Does the govern-

ment have a license to keep any property it obtains for at least the

duration of a trial if that property was unlawfully obtained?

In answering these questions, the Court found that the eviden-

tiary principle—that “a court will not, in trying a criminal cause,

permit a collateral issue to be raised as to the source of competent

testimony”—was inapplicable in cases where the accused “applied . . .

in due season for the return of papers seized in violation of the

[Constitution].”

172

This is because a rule of evidence could not confer

a property right, in the form of a temporary license, to government

officials who were holding property unreasonably seized. The prop-

erty had to be returned as a matter of property law, even though it

would not be excluded as a matter of evidence law. The only limita-

tion is that a defendant could not raise a property claim in the middle

of a criminal trial, notwithstanding the strong nexus between the prop-

erty right and the criminal proceeding; he had to apply in “due

season[,]”

173

“without awaiting his trial.”

174

168

Id. at 387.

169

Id. at 388.

170

Id. at 392.

171

Id. at 393 (emphasis added).

172

Id. at 396.

173

Id. at 393.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 41 21-MAR-12 13:28

172 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

At this point, the narrowness of the evidentiary principle in fed-

eral court should be abundantly clear. As long as the property

belonged to the defendant and was seized illegally, he could have it

back through timely petition, in effect excluding it as evidence. In

other words, the evidentiary principle did not deprive the accused of

his common law causes of action. As discussed earlier, all actions

taken against the accused on the basis of an illegal search were

without defense, and thus unable to authorize any injuries those

actions imposed on the accused. Any such action could constitute

assault, battery, false imprisonment, false arrest, trespass, or any other

number of common law causes of action. The evidentiary principle did

not change this. Thus, if the remedy for unlawfully acquired property

included return of that property, the evidentiary principle had nothing

to say. It did not confer authority to hold the property, nor did it oth-

erwise purport to limit any rights.

This is not how we understand the modern exclusionary rule.

Weeks no doubt implicated Fourth Amendment policies about

securing one’s person and property from seizures, but these policies

were, at their core, driven by principles (and thus remedies) of prop-

erty law. The background principle is a combination of property law

and the enumeration principle: If an officer, pursuant to no legal

authority, seizes private property, the rightful owner could sue to

recover his property. This, by its own terms, implied two scenarios

where exclusion would not be available: (1) the plaintiff could not sue

to recover property for which she could not demonstrate title (for

example, stolen property),

175

and (2) the plaintiff could not sue to

recover any property seized pursuant to valid authority.

176

In addition to these, there was the evidentiary principle that crim-

inal trials would not be halted for collateral issues regarding the

source of otherwise competent evidence. Weeks did not adopt an

exclusionary rule, but reasserted a common law property remedy. In

other words, it resolved a question that foiled the tension between

174

Id. at 396.

175

Indeed, the defendant in Weeks emphasized in his brief that the property rightfully

belonged to him. See Statement, Specification of Errors and Brief for the Plaintiff in Error

at 4, Weeks, 232 U.S. 383 (1914) (No. 461).

176

Cf. United States v. Mills, 185 F. 318 (S.D.N.Y. 1911). In Mills, the court stated:

From time immemorial an officer making a lawful arrest on a criminal charge

has taken into his possession the instruments of the crime and such other arti-

cles as may reasonably be of use as evidence on the trial. A blood-stained knife

or garment, a half-emptied phial of poison, a mask or disguise, counterfeit

coins, plates for printing counterfeit notes, gambling devices, stolen property,

and many other articles are thus seized every day on the person or the prem-

ises of the alleged criminal, and no one disputes the propriety of such seizure.

Id. at 319 (emphasis added).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 42 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 173

property law and criminal evidence law: What if the accused moved to

recover his property before the trial began? This question was

answered in Weeks by the presumption of innocence, the concern

about self-incrimination,

177

and the primacy of property rights.

The evidentiary exclusionary rule evolved in this doctrinal thicket

from a property-based remedy to a truly evidentiary remedy, the one

we recognize today. The first step came in Silverthorne Lumber Co. v.

United States,

178

in which officers had seized papers, made copies, and

returned the originals upon district court order. After all this, how-

ever, the court subpoenaed the originals based on evidence gathered

from the copies made in the illegal seizure and then held the defen-

dants in contempt for failure to abide.

179

The problem, of course, was

that this did in two steps what the government could not do in one.

Rather than unreasonably seizing evidence, the government would

unreasonably seize it, document it, return it, and then coerce the

accused to hand it over on the basis of the unreasonable search and

seizure. Accordingly, Justice Holmes’s terse opinion took sweeping

language, rejecting the idea “that the protection of the Constitution

covers the physical possession but not any advantages that the

Government can gain over the object of its pursuit by doing the for-

bidden act.”

180

Critical here is that in Silverthorne, like in Boyd, the accused

objected to the court’s action—holding the accused in contempt for

failure to comply with an unauthorized subpoena—and, like in Boyd,

the property in question belonged to the accused. It was not an

attempt to stop the criminal trial to inquire into the unauthorized

actions of a police officer. Consequently, this did not implicate the

traditional rule of evidence that trials will not be stopped to determine

collateral issues, because the validity of the court’s contempt holding

turned on whether the court could use illegally obtained evidence as

the basis for coercing the production of that same evidence.

181

It could

not.

177

It is worth noting again the intimate relationship between the Fourth and Fifth

Amendment rights. The perception in these cases is that a court treads on the accused’s

Fifth Amendment right against self-incrimination when it violates the Fourth Amendment

to coerce the accused into licensing his property to the state for purposes of incriminating

himself. The contours of this interaction are interesting and are worth exploring elsewhere

but, for purposes of this Article, it is sufficient to highlight this relationship and note that it

played some role in conceptualizing the defendant’s experience with the criminal justice

system.

178

251 U.S. 385 (1920).

179

Id. at 391.

180

Id.

181

Justice Holmes’s opinion was to this effect. He rejected the idea that an unwarranted

seizure could become warranted by using “two steps . . . instead of one” (here, seizing the

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 43 21-MAR-12 13:28

174 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

In Gouled v. United States,

182

an officer surreptitiously seized evi-

dence, a fact unbeknownst to the defendant until the evidence was

introduced at trial. Only then did the defendant object. The Court

held that “[t]he objection was not too late, for, coming as it did

promptly upon the first notice the defendant had that the

Government was in possession of the paper, the rule of practice relied

upon, that such an objection will not be entertained unless made

before trial, was obviously inapplicable.”

183

In another case that same

term, the Court found that a petition for return of property was not

“too late when presented after the jury was empaneled,” and thus the

subsequent motion to exclude could not be denied “by the rule that in

the progress of the trial of criminal cases courts will not stop to frame

a collateral issue to inquire whether evidence offered, otherwise com-

petent, was lawfully or unlawfully obtained.”

184

These cases more intimately tie property rights with Fourth

Amendment rights, the implication being that the remedy afforded by

property law was servicing both rights. Specifically, in Amos, the

Court allowed the defendant to apply for his property even after the

jury was empaneled because he did not have a fair chance to do so

before that point. This inquiry—whether the defendant had a fair

chance to ask for his property back—is not part of “property” law.

Rather, it signals that the Court abandoned the fiction that the prop-

erty right violated by the officer was wholly separate from the criminal

prosecution and increasingly understood the two as related. As a

result, the Court became increasingly willing to adjudicate “property”

issues in the context of criminal trials.

More difficult were trials involving drug possession, where the

accused (if guilty) possessed property she had no legal right to pos-

sess. This presented an awkward tension between the presumption of

innocence and the unpalatable remedy of returning illegal drugs to a

drug dealer or consumer. The Court artfully resolved this issue in

Agnello v. United States, in which the government had illegally seized

cocaine from the defendant’s home that the defendant denied ever

having.

185

The Court held that the evidence was inadmissible, bor-

rowing its primary rationale from Boyd: Introduction of illegally

seized evidence violates not only the Fourth Amendment right, but

also the Fifth Amendment right against self-incrimination. As a result,

papers, copying them, and basing a legal order on the latter, as opposed to merely seizing

them). Id.

182

255 U.S. 298 (1921).

183

Id. at 305.

184

Amos v. United States, 255 U.S. 313, 316 (1921).

185

Agnello v. United States, 269 U.S. 20, 29–30 (1925).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 44 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 175

the Court held that “there is no reason why one whose rights have

been so violated and who is sought to be incriminated by evidence so

obtained, may not invoke protection of the Fifth Amendment immedi-

ately and without any application for the return of the thing

seized.”

186

Of course, the government argued that there was a reason,

and a good reason at that: the evidentiary principle that stood against

halting a criminal trial to adjudicate whether evidence should be

excluded on the basis of how it was obtained. As the government

argued, “even if the search and seizure were unlawful, the evidence

was admissible because no application on behalf of defendant was

made to the court for the return of the can of cocaine.”

187

The Court disagreed for two reasons. First, because the defendant

was insisting upon his innocence, “[i]t would be unreasonable to hold

that he was bound to apply for the return of an article which he main-

tained he never had.”

188

What makes the difference here is the Fifth

Amendment. If the Court ruled against the defendant, the govern-

ment would have the benefit of an unconstitutional checkmate: The

defendant would be forced either to incriminate himself by applying

for the drug’s return, or sit on his Fourth Amendment right against

unreasonable searches by allowing the prosecutor to use the drugs as

evidence. This rationale—which allows the accused to assert a prop-

erty law remedy while denying an actual property right in the item—

underscores that the remedy afforded by property law was by now (if

not all along) well understood as a remedy for the Fourth Amendment

right. This is not entirely surprising, as the Fourth Amendment pro-

tects property (among other things) by securing it from unreasonable

invasion.

Second, there was no evidence to suggest that the accused “knew

that the government claimed it had searched his house and found

cocaine there, or that the prosecutor intended to introduce evidence

of any search or seizure.”

189

This pushed the Court’s jurisprudence

with regard to timing to its logical conclusion, which is that the defen-

dant must file for return of his property, as the government suggests,

but is not expected to do so insofar as he is not aware that his property

was taken. The evidentiary principle was thus dismissed as a “rule of

practice [that] . . . must not be allowed . . . to prevail over a constitu-

tional right.”

190

186

Id. at 34.

187

Id.

188

Id.

189

Id.

190

Id. at 34–35 (quoting Gouled v. United States, 255 U.S. 298, 313 (1921)).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 45 21-MAR-12 13:28

176 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

2. Incorporating the Federal Exclusionary Rule

As we have seen, the federal exclusionary rule—a principle of

evidence in criminal trials—derived essentially from the remedies

available for violations of civil property law. But exclusion was not

merely the exercise of a civil property right. As we saw, when the

defendant had sued or moved to recover his property, the question

was whether the government has a right to hold on to that property.

When the answer was no, it was because doing so violated the defen-

dant’s Fourth Amendment right—that is, the guarantee that he is

secure in his person, houses, papers, and effects against unreasonable

searches and seizures. This right protected property from unreason-

able searches and seizures, but nothing more or less.

191

In the seminal 1961 case Mapp v. Ohio, the Supreme Court incor-

porated the exclusionary rule against the states. The decision in Mapp

has been commended,

192

criticized,

193

extended,

194

and, more recently,

contracted.

195

But incorporating the right against unreasonable

searches and seizures was not as simple as it may now seem. Once

incorporated, remedies for Fourth Amendment violations would

hinge on a state’s configuration of its property law, creating concerns

about variation in the right’s robustness from state to state. The ques-

tion would be whether the Fourth Amendment right, once incorpo-

rated, would bring with it its property remedy, or whether that right

would depend on each state’s property law. The story of Mapp is the

story of how the Court dealt with these concerns. It is, by extension,

191

Of course, other property rights are protected elsewhere in the Constitution, for

example by the Takings Clause and by the Due Process Clause more generally.

192

Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development

and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 C

OLUM

. L. R

. 1365,

1389 (1983) (“[T]he exclusionary rule is constitutionally required, not as a ‘right’ explicitly

incorporated in the fourth amendment’s prohibitions, but as a remedy necessary to ensure

that those prohibitions are observed in fact.” (emphasis omitted)).

193

See, e.g., Stone v. Powell, 428 U.S. 465, 498 (1976) (“A more clumsy, less direct

means of imposing sanctions is difficult to imagine . . . .”).

194

See, e.g., Wong Sun v. United States, 371 U.S. 471, 485 (1963) (excluding presenta-

tion of verbal evidence and recovered narcotics where they were both fruits of an illegal

entry).

195

See, e.g., Davis v. United States, 131 S. Ct. 2419, 2429 (2011) (holding that searches

conducted in objectively reasonable reliance on binding appellate precedent are not sub-

ject to the exclusionary rule); INS v. Lopez-Mendoza, 468 U.S. 1032, 1042 (1984) (not

applying the exclusionary rule to deportation proceedings because “social costs” exceed

“deterrence value”); United States v. Havens, 446 U.S. 620, 627–28 (1980) (holding that

the exclusionary rule does not bar evidence from being used to impeach a defendant’s

testimony); Rakas v. Illinois, 439 U.S. 128, 134 (1978) (holding that a passenger does not

have standing to object to search of vehicle); see also The Supreme Court, 2005 Term—

Leading Cases, 120 H

ARV

. L. R

. 125, 183 (2006) (“It remains to be seen how far the

Court will go, but Hudson is a strong signal that the exclusionary rule is in trouble.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 46 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 177

the story of how the Court dealt with the relationship between the

Constitution and a diverging common law.

The story begins with Wolf v. Colorado, in which the Court held

that the Fourteenth Amendment incorporated the right against unrea-

sonable searches and seizures, but did not compel the exclusionary

rule.

196

Justice Frankfurter’s opinion for the 6-3 majority began with

the premise that the exclusionary rule was an evidentiary device

“made for the first time in [Weeks in] 1914.”

197

As we have seen, this

is an overstatement, predicated on employing the term “exclusionary

rule” to conflate a variety of interconnecting doctrines.

Wolf incorporated the right against unreasonable searches and

seizures because it deemed such a right to be “implicit in ‘the concept

of ordered liberty,’” thus meeting the standard by which the Due

Process Clause incorporates rights against the states.

198

The same

standard allowed the Court to deny mandating a particular remedy:

“We cannot . . . regard it as a departure from basic standards to

remand . . . [those illegally searched] to the remedies of private action

and such protection as the internal discipline of the police . . . may

afford.”

199

This position was practically and logically problematic, given the

development of the Fourth Amendment in the federal context. Justice

Murphy’s dissent recounts some of the pragmatic problems with

claiming that injured parties have other remedies

200

—many of which

should be familiar after the discussion above. To reiterate, however,

this decision took place against a backdrop of growing doctrines of

officer immunity found in state law, as well as the declining practi-

cality of actually suing officers for trespass. Thus, those “remedies of

private action” that the majority relied upon were in the process of

dwindling.

Moreover, the logic of incorporating the Fourth Amendment but

not the exclusionary rule was in tension with the enumeration prin-

ciple, as now the same powers not conferred to the federal govern-

ment were also withheld from state governments. If the state is not

196

338 U.S. 25, 28 (1949).

197

Id. at 28.

198

Id. at 27 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

199

Id. at 31 (emphasis added).

200

These problems included the fact that damages were limited to injury incurred by

physical property, various states’ limitations or bars on punitive damages, the admissibility

of evidence of the plaintiff’s bad reputation, and the problem of states that made use of

evidence at trial a complete justification for the search. Finally, “even if the plaintiff hur-

dles all these obstacles, and gains a substantial verdict, the individual officer’s finances may

well make the judgment useless—for the municipality, of course, is not liable without its

consent.” Id. at 42–44 (Murphy, J., dissenting).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 47 21-MAR-12 13:28

178 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

given the power to conduct unreasonable searches and seizures, this

means, as noted earlier, that there is no cognizable authorization for

unreasonable searches or seizures that agents of the state could

invoke. It is unclear, then, how agents of the state could, consistent

with the Fourth Amendment, retain property unreasonably seized

when presented with a timely petition for a return of that property.

Their defense, if accepted, would necessarily grant the government

privileges with regards to goods unreasonably seized. Whether the

property is in the possession of a police officer or a clerk of the court,

somewhere an agent is holding the suspect’s property without authori-

zation (that is, license). In short, regardless of who ultimately has con-

trol of the property, that control would be traced to an unlawful

search and seizure that cannot legally convey such a license.

201

This

was the teaching of federal case law leading up to and following

Weeks. Absent this understanding, states could discriminate against

the Fourth Amendment right or vastly change the scope of that right

by tinkering with their common law, raising an interesting analogy to

the Court’s jurisprudence generally prohibiting states from discrimi-

nating against federal rights.

202

Wolf avoided this problem by incorporating the policy but not the

text or logic of the Fourth Amendment. Allowing damages but not

exclusion seemed to satisfy the policy that government should not

unlawfully search and seize evidence. But doing so created its own

problems. To the extent that the Court was concerned with policy, it

had to deal with the problem of declining common law remedies.

More fundamentally, Wolf implicitly welcomed litigants to bring suits

challenging the extent to which state remedies fulfilled Fourth

Amendment policy. The Court’s logic in declining to incorporate

exclusion was that while the Fourth Amendment right was implicit in

the concept of ordered liberty, exclusion was not. This invited chal-

lenges to various state remedies on the ground that the remedies

failed to protect sufficiently a right that was necessary to ordered lib-

201

The court in Hoyer v. State, alludes to this point:

To say, then, that when the state itself has thus violated its own pledges, it may

use the results thereby obtained for its own purpose, become a party to the

trespass by ratification, trace its title through wrongful acts of its officers,

remain itself immune, in its sovereignty, from legal liability, and then relegate

the individual whose rights are thus swept away and made valueless in and by a

court of justice, to his bootless and fruitless action of trespass against such

trespassing state officials as individuals, is to gibe and to jeer.

193 N.W. 89, 93 (Wis. 1923) (emphasis added).

202

See, e.g., Testa v. Katt, 330 U.S. 386, 389 (1947) (states may not discriminate against

federal rights); Haywood v. Drown, 129 S. Ct. 2108, 2115 (2009) (same, even if federal

rights are particularly costly).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 48 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 179

erty. In turn, the holding in Wolf, which was premised in part on con-

cerns about federalism, threatened vast and unprincipled federal

interference with state common law. Incorporating the Fourth

Amendment meant imposing a minimum level of protection for the

individual right, below which the states could not go. Otherwise, Wolf

would stand for nothing more than a Supreme Court statement

encouraging states to consider the Fourth Amendment. This created

the potential for a major jurisprudential problem: The Court would

now have to decide which common law features remedying unreason-

able searches and seizures—for example, officer immunities, punitive

damages, rules of evidence, the availability and robustness of common

law causes of action—were necessary to satisfy the Constitution.

Though the question of overruling Wolf was not briefed before

the Court in Mapp v. Ohio,

203

the majority opinion was motivated by

these very concerns. As Justice Douglas put it, “[t]he immediate result

[of the Court’s decision in Wolf] was a storm of constitutional contro-

versy which only today finds its end.”

204

Indeed, the Court had been

petitioned to overrule the Wolf decision “Term after Term,”

205

about

fifteen times per Term in the three years before Mapp.

206

The Court in Mapp began by citing precedent establishing that

the exclusionary rule was rooted in a specific, well-recognized consti-

tutional logic: that the essence of the offense was “not the breaking of

[one’s] doors, and the rummaging of his drawers,” but rather “the

invasion of [the defendant’s] indefeasible right of personal security,

personal liberty and private property” committed by holding his pri-

vate items “to be used as evidence to convict him of crime . . . .”

207

This indefeasible right meant that officers could not be authorized to

seize or to retain seized evidence, or any property for that matter,

208

203

367 U.S. 643, 646 n.3 (1961).

204

Id. at 670 (Douglas, J., concurring).

205

Id. at 654 (majority opinion).

206

Id. at 676 (Harlan, J., dissenting). Of course, Mapp did not actually overrule Wolf so

much as it extended it. Wolf, as mentioned earlier, only somewhat incorporated the Fourth

Amendment—its policies, but not its text or logic. Mapp went ahead with full incorpora-

tion and, in doing so, overruled Wolf only insofar as Mapp required exclusion.

207

Id. at 646–47 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

208

Note a very interesting point here: The remedy is derived from property law, but the

right is something broader than a property right. The Fourth Amendment guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. C

ONST

. amend. IV. As we saw in Silverthorne

Lumber Co. v. United States, 251 U.S. 385, 391–92 (1920), the Court did not construe the

Fourth Amendment as merely a property right. See supra notes 178–81 and accompanying

text (discussing Silverthorne Lumber as the first step in the evolution of the exclusionary

rule from a property-based remedy to an evidentiary remedy). The government was not

allowed to document illegally acquired evidence as a means by which to authorize further

government action. This decision had consequences beyond what is guaranteed by a prop-

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 49 21-MAR-12 13:28

180 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

the seizure was done pursuant to an unreasonable search. The Court

relied on Weeks to assert that the Fourth Amendment stood for, if

nothing else, the idea that private belongings could not “be seized and

held and used . . . against a citizen.”

209

The Constitution gives the

government power to retain such property only if that property was

obtained in a manner consistent with the Fourth Amendment. Thus,

by authorizing the officer to hold evidence that was obtained in viola-

tion of the Fourth Amendment, the government would be conferring

on him a legal privilege that the Fourth Amendment does not allow

the government to confer. In short, the government was exercising a

power it did not have. This contradicted the enumeration principle in

a fundamental and arguably irreconcilable way.

210

Consequently, even

Justice Black, not known for extra-textual enthusiasm, found that the

Constitution “not only justifies but actually requires the exclusionary

rule.”

211

Over and over, the Court repeated that the exclusionary rule

was not a rule of evidence but a constitutional rule that said that what

the Fourth Amendment forbade could not “find . . . sanction in the

judgments of the courts,” unless of course no timely petition was

filed.

212

This rule had implications for evidentiary law insofar as

officers or courts attempted to hold property seized in violation of the

Fourth Amendment, but it did not “refer[ ] to or limit[ ] the use of

evidence in courts.” This was a long way of saying that it was not a

right to exclusion, but an application of the enumeration principle in

the context of Fourth Amendment seizures, which, in turn, had a

“striking outcome” for evidence law.

213

Striking, but “logically and

erty right. For example, it then became arguable that if the government illegally seized

information, that information could not satisfy its burden of proof during a prosecution.

Put differently, the government could not take action that it would not have been able to

take but for the unlawfully seized evidence. This conclusion of course raises questions

about proximate cause, but also sheds light on modern intuitions such as the fruit of the

poisonous tree doctrine.

209

Mapp, 367 U.S. at 648 (quoting Weeks v. United States, 232 U.S. 383, 393 (1914))

(emphasis added).

210

Cf. id. at 660 (“The ignoble shortcut to conviction left open to the State tends to

destroy the entire system of constitutional restraints on which the liberties of the people

rest.”).

211

Id. at 662 (Black, J., concurring). Justice Black’s decision was impressed specifically

by the interaction between the Fourth and Fifth Amendments. As mentioned earlier, this

does not change the logic presented here that has assumed, like Boyd, the relationship

between the Fourth and Fifth Amendments.

212

Id. at 648–49 (majority opinion) (quoting Weeks, 232 U.S. at 392); see also id. at 670

(Douglas, J., concurring) (stating that Wolf eviscerated the Fourth Amendment by doing

exactly what it prohibited: “allow[ing] States to give constitutional sanction to the ‘shabby

business’ of unlawful entry into a home” (quoting Wolf v. Colorado, 338 U.S. 25, 46 (1948)

(Murphy, J., dissenting))).

213

Id. at 649 (quoting Olmstead v. United States, 277 U.S. 438, 462 (1928)).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 50 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 181

constitutionally necessary.”

214

The Court took this “logical dictate”

215

seriously,

216

as it downplayed the availability of other remedial

schemes as “not basically relevant.”

217

It is true that such alternatives

had no role to play in the logic of why the exclusionary rule was

required by the Fourth Amendment, but they were not exactly irrele-

vant. A broader historical canvas suggests that the problems with state

common law remedial systems actually pushed the Court to incorpo-

rate the Fourth Amendment more fully in the first place. The

majority’s dismissal of Wolf’s reasoning as “bottomed on factual con-

siderations”

218

was motivated not by ideology, but by deep jurispru-

dential concerns—both principled and pragmatic—about both how

the Constitution was to interact with local remedial systems and what

the Court’s role would be in overseeing that interaction.

219

Accepting

the Wolf rationale would have required the Court to constantly mon-

itor all fifty states to “consider the current validity of the factual

grounds upon which Wolf was based,”

220

mainly the availability of

adequate remedies. That would have been no easy task, and hardly

one sensitive to federalism. The Court noted the experience of states

that had found that “such other remedies [mentioned by the Court in

Wolf] have been worthless and futile.”

221

As Justice Douglas stated in

his concurrence, “[t]he truth is that trespass actions against officers

who make unlawful searches and seizures are mainly illusory reme-

dies.”

222

In sum, the Court in Mapp perceived three choices: (1)

Essentially unincorporate the Fourth Amendment by abandoning fed-

eral enforcement, thus leaving enforcement to dwindling state law

remedies, (2) monitor and inject federal standards into state common

law regimes, or (3) incorporate the logic of the exclusionary rule. The

entirety of the opinion is devoted to why it chose the third.

214

Id. at 656.

215

Id. at 657.

216

See id. at 659 (“Nothing can destroy a government more quickly than its failure to

observe its own laws, or worse, its disregard of the charter of its own existence.”).

217

Id. at 651.

218

Id.

219

See also id. at 666 (Black, J., concurring) (noting that the Court was “dissipat[ing] the

doubt and uncertainty in this field of constitutional law” by rejecting the “confusing” Wolf

doctrine in exchange for “the precise, intelligible and more predictable constitutional doc-

trine enunciated in the Boyd case”).

220

Id. at 651 (majority opinion).

221

Id. at 652.

222

Id. at 670 (Douglas, J., concurring).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 51 21-MAR-12 13:28

182 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

B. Federal Cause of Action

The relationship between the common law and the Constitution,

and the Court’s management of that relationship, implicated much

more than the application of the exclusionary rule. In the following

Sections, this Article uses the lens of common law remedies to under-

stand Monroe and Bivens. Once again common law remedies provide

an interesting and useful lens through which to examine how these

cases were shaped. The weakening of the common law remedies drew

attention to the difficulties of having constitutional rights rely on

them; in turn, this increased the salience of arguments that could

avoid these difficulties by, for example, providing some sort of

administrable remedy that would not grow or shrink at the whim of

state common law. Both of these cases were about preserving the path

of the Constitution in the face of an ever-differing route taken by the

common law.

1. Monroe v. Pape

The Civil Rights Act of 1871, more popularly known as § 1983,

establishes a tort-like remedy for persons deprived of federally pro-

tected rights “under color of any statute, ordinance, regulation,

custom, or usage.”

223

In Monroe v. Pape, the Court held that § 1983

provides a remedy to parties deprived of their federal rights “by an

official’s abuse of his position.”

224

In other words, an officer can be

acting “under color of” state law even if the officer’s conduct is wholly

unauthorized by state law.

225

To reach their conclusions, the majority

and the dissent both rely heavily on the legislative history of § 1983.

Scholars have done the same.

226

Indeed, even beyond the legislative

223

42 U.S.C. § 1983 (2006). In its entirety, § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immuni-

ties secured by the Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding for redress, except

that in any action brought against a judicial officer for an act or omission taken

in such officer’s judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the District of

Columbia.

224

Monroe v. Pape, 365 U.S. 167, 172 (1961).

225

Id. at 184.

226

See, e.g., J

OHN

C. J

EFFRIES

, J

ET AL

., C

IVIL

IGHTS

CTIONS

: E

NFORCING THE

ONSTITUTION

45 n.g (2007) (noting that scholars have reached “diametrically opposed

interpretations” of the history of § 1983).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 52 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 183

history, almost anything that can be said about Monroe has been said

in the nearly two thousand law review articles that cite the case. This

Article does not weigh in on whether Monroe was wise or sound.

Instead, it discusses Monroe in the context of common law remedies

in order to better understand its result.

It is no coincidence that Monroe v. Pape came on the heels of

growing problems with common law remedies. The majority opinion

first identifies three policies in § 1983: (1) to “override certain kinds of

state laws,” (2) to “provide a [federal] remedy where state law was

inadequate,” and (3) “to provide a federal remedy where the state

remedy, though adequate in theory, was not available in practice.”

227

As these policy goals imply, the Civil Rights Act was, at least in

theory, designed to interact with the system of common law remedies

existing in the states; it did so by introducing a federal remedy where

state remedies had failed.

228

Without the benefit of Monroe, a plaintiff

would seek recovery by filing a common law suit against the trans-

gressing officers (for trespass, false imprisonment, battery, or

whatever cause of action applied). Upon filing suit, one of two out-

comes was possible for a meritorious claim. First, the plaintiff could

win in state court and be fairly compensated for his injury. Second, the

plaintiff could be denied relief, either by an unfavorable verdict, at the

damages stage, or on appeal. This could happen because of bad faith,

good faith misapplication of constitutional law, or some other facet of

the common law remedy like officer immunity.

The first scenario, where the injured person is compensated, is a

happy one, at least as far as the judiciary is concerned. The second

provides the logic that drove Monroe. In this scenario, there is a plain-

tiff who was injured by an officer’s unconstitutional action, but who

loses in court because, for example, the state court misinterpreted the

Constitution or provided the officer with immunity for unconstitu-

tional conduct. In these circumstances, the courts are implicitly

authorizing the officer’s unconstitutional conduct by protecting him

against valid legal challenges.

229

There is no doubt that an officer acts

under color of law if he searches pursuant to a statute providing that

“officers may unreasonably search homes.” But a law declaring that

227

Monroe, 365 U.S. at 173–74.

228

The Act’s original title is particularly interesting: “An act to protect all persons in the

United States in their civil rights, and to furnish the means of their vindication.” Civil

Rights Act of 1871, 17 Stat. 13.

229

Cf. Weeks v. United States, 232 U.S. 383, 394 (1914) (“To sanction [unconstitutional

behavior] would be to affirm by judicial decision a manifest neglect if not an open defiance

of the prohibitions of the Constitution, intended for the protection of the people against

such unauthorized action.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 53 21-MAR-12 13:28

184 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

“officers may unreasonably search” is in effect no different than one

that declares that “there shall be no legal repercussions for unreason-

able searches conducted by officers.” Nor are any of these different

from a court-made doctrine providing officers with such immunity.

They each have the same effect as is relevant here: They establish a

legal privilege under which the officer may act. The same is true when

a state court misinterprets the Constitution to allow an officer to do

something that the Constitution actually prohibits. It creates a legal

regime in which an officer may act under the privilege of law, immune

from reproach or repercussion.

Put in the language of § 1983, officers act under color of law

when state courts authorize or immunize their conduct, or do anything

to provide that conduct with a “privileged” status. Accordingly, if a

plaintiff brought a meritorious claim against an officer and was denied

relief in state court, a § 1983 claim would ripen.

230

That is, after the

officer’s conduct is blessed by the state court, the officer, who

deprived the plaintiff of a constitutional right, can be described as

acting under color of state law. This means that after losing in state

court, the plaintiff can sue under § 1983, alleging that the officer

deprived him of a federal right under color of state law.

In the world before Monroe, the logic and operation of § 1983

promised a potentially long but ultimately successful path for merito-

rious claims. If a plaintiff had a meritorious claim, he would either

have his injury redressed in state court, or have a cause of action in

federal court under § 1983. And indeed, Justice Frankfurter, who dis-

sented in Monroe, concluded that “[a]ll the evidence converges to the

conclusion that Congress by § [1983] created a civil liability enforce-

able in the federal courts only in instances of injury for which redress

was barred in the state courts . . . .”

231

Under that view, the plaintiff

was relegated to the state tort system. If he lost on a meritorious con-

stitutional claim, however, then he had a “civil liability enforceable in

the federal courts.”

232

But the majority in Monroe rejected Justice Frankfurter’s vision

of the relationship between state courts, federal courts, and § 1983

230

Cf. Monroe, 365 U.S. at 242 (Frankfurter, J., dissenting) (arguing that “remed[ies]

devolve[ ], in the first instance, on the States,” but conceding that “[o]f course, if the States

afford less protection against the police, as police, than against the hoodlum—if under

authority of state ‘statute, ordinance, regulation, custom, or usage’ the police are specially

shielded,” then § 1983 would apply). Such jurisdiction would not be barred by estoppel

principles because the elements forming the claim had not yet occurred.

231

Id. at 237.

232

Id.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 54 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 185

without ever making its own view entirely clear. The most important

lines in the opinion read cryptically:

It is no answer that the State has a law which if enforced would give

relief. The federal remedy is supplementary to the state remedy,

and the latter need not be first sought and refused before the federal

one is invoked. Hence the fact that Illinois by its constitution and

laws outlaws unreasonable searches and seizures is no barrier to the

present suit in the federal court.

233

Monroe held that rather than going to state court first, plaintiffs could

simply procure the inevitable by filing a § 1983 action in federal court.

That is, Monroe provided a shortcut.

As an aside, this conclusion accords with the Court’s holding

decades earlier in Home Telephone & Telegraph Co. v. City of Los

Angeles.

234

There, the Court held that where a plaintiff was asserting a

Fourteenth Amendment due process claim and a state law claim, fed-

eral courts need not wait for state courts to adjudicate the state law

claim.

235

That case provides an interesting insight into the relationship

between federal and state law: An unconstitutional action can be nul-

lified by either state or federal law, and neither the state nor federal

question must be answered first. Thus, even if something is unlawful

under state law, and thus perhaps not “state action” in the formal

sense (because the state does not allow such action), it can still be

rendered null by federal law without waiting to see if state law nulli-

fies it first.

Similarly, in Monroe, the Court held that a person deprived of

her constitutional rights by an officer need not go to state court for

redress before filing in federal court.

236

The difference between Home

Telephone and Monroe, of course, is that in Monroe, the cause of

action arises from a statute that requires the officer to have been

acting under color of state law. The majority and Justice Frankfurter

agreed that an officer acts under color of state law if (1) he trespasses

or otherwise injures a plaintiff without having constitutional authority

to do so, and (2) the officer is not held liable just as any other

person—that is, non-officer person—would be liable for committing

the same act (be it trespass, theft, etc.).

237

In other words, if state

233

Id. at 183 (emphasis added).

234

227 U.S. 278 (1913).

235

Id. at 283–84.

236

Monroe, 365 U.S. at 183.

237

Id. at 242 (Frankfurter, J., dissenting) (“Of course, if the States afford less protection

against the police, as police, than against the hoodlum—if under authority of state ‘statute,

ordinance, regulation, custom, or usage’ the police are specially shielded—[§ 1983] pro-

vides a remedy which dismissal of petitioners’ complaint in the present case does not

impair.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 55 21-MAR-12 13:28

186 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

courts denied relief against officers who acted unconstitutionally,

those officers were acting under color of state law. The majority and

Justice Frankfurter parted ways, however, in that the majority was

willing to provide a shortcut: Rather than wait for the state court to

deny relief first, the plaintiff could just sue in federal court.

But this characterization of Monroe as a shortcut to the inevi-

table is misleading in an important way. To be sure, if a plaintiff has a

meritorious constitutional claim against an officer, and the state court

denies relief, then the officer can be seen as acting under color of state

law. But what if the state court does not (or was not going to) deny

relief? Monroe allows a federal remedy nonetheless. Thus, Monroe is

only a “shortcut” insofar as the state court was going to deny ade-

quate relief; otherwise, it is a supplement to the state law remedy.

This result is in part attributable to the difficult question of what

relief a state must provide so that it does not legally privilege an

officer’s unconstitutional conduct. The logic of § 1983 was, in part,

premised on the general availability of state forums to adjudicate the

rights within § 1983’s ambit and to provide adequate relief. In theory,

courts should punish the officer as though he was not an officer but an

ordinary person violating another person’s common law rights. Just as

in Little v. Barreme, the fact that the officer thought he was doing his

job or even following instructions “cannot change the nature of the

transaction, or legalize an act which without those instructions would

have been [unlawful].”

238

But, of course, in the decades prior to

Monroe, the common law remedies relied upon in § 1983’s logic

drifted, fragmented, contracted, and ultimately withered as practical

options for relief.

Monroe avoided that problem by passing over state courts alto-

gether. Plaintiffs could seek remedy in federal court, and federal

courts could provide this remedy without having to inquire into the

adequacy of state law remedies. Thus, the fact that Monroe came

when it did should not be too surprising. Monroe, decided the same

term as Mapp, was motivated by the same concerns about federalism

and judicial administration, and arose from the same problem of

diminished common law remedies. If the rights were systematically

withering, the alternative seemed an empty formality: Plaintiffs would

have to parade through the state system as a formalistic prerequisite

to obtaining a ripened § 1983 claim, and even if they were afforded

238

6 U.S. (2 Cranch) 170, 179 (1804).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 56 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 187

relief in state court, there would be difficult questions about whether

the relief was sufficient.

239

This was not just an empty formalism and a waste of time and

state resources. It was also offensive to federalism, as federal courts

would essentially be sitting as courts of constitutional error correction

for civil claims in state courts.

240

Justice Harlan reiterated this point in

his concurrence, where he noted that interpreting § 1983 otherwise

would “reduce the statute to having merely a jurisdictional function,

shifting the load of federal supervision from the Supreme Court to the

lower courts and providing a federal tribunal for fact findings in cases

involving authorized action.”

241

Federal courts would have to decide

whether state common law practices—including their procedural cir-

cumstances, provisions of immunity, and approaches to damages—

were interfering with the vindication of federal rights. Monroe

decided that the intent of § 1983 was to provide a simpler and less

intrusive process: sidestep the state courts, and file in federal court.

It is also worth pausing to consider the timing of Monroe. As one

commentator noted, there were only twenty-one suits under § 1983

between 1871 and 1920.

242

Members of the Court and other commen-

tators have interpreted this fact as suggesting that before Monroe,

§ 1983 was a more humble statute that was interpreted narrowly by

courts.

243

The implication is that § 1983 was not intended to be a

239

Justice Frankfurter seemed to agree with this logic in theory, but remained factually

unpersuaded that the common law remedies for suing officers were more limited than

those for suing an “individual hoodlum intruder.” Monroe, 365 U.S. at 242. Justice

Frankfurter goes on to say: “Of course, if the States afford less protection against the

police, as police, than against the hoodlum—if under authority of state ‘statute, ordinance,

regulation, custom, or usage’ the police are specially shielded—[§ 1983] provides a remedy

which dismissal of petitioners’ complaint in the present case does not impair.” Id. at

242–43.

240

That the writ of certiorari is discretionary only adds to this concern. This also calls to

mind James Madison’s concerns leading up to the Madisonian Compromise. In response to

proposals that federal courts sit as appellate courts over state tribunals, Madison expressed

unease regarding the magnitude of work this would create for federal courts. See 1 T

ECORDS OF THE

EDERAL

ONVENTION OF

1787, at 124 (Max Farrand ed., 1911).

241

Monroe, 365 U.S. at 195.

242

Comment, The Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?,

26 I

. L.J. 361, 363 (1951).

243

Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting) (“Monroe

changed a statute that had generated only 21 cases in the first 50 years of its existence into

one that [generates] tens of thousands of suits each year, and engages this Court in a losing

struggle to prevent the Constitution from degenerating into a general tort law.”). One

scholar writes:

For decades, Section 1983 received a narrow interpretation by courts hostile to

expansive federal enforcement of civil rights. Not until 1961 did the Court

firmly hold that Section 1983 could remedy state violations of federal constitu-

tional rights. The combination of this decision and expansive individual rights

jurisprudence led to a mushrooming of constitutional claims . . . .

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 57 21-MAR-12 13:28

188 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

sweeping remedy, but was made so by Monroe. The problem with this

inference is that until incorporation, there simply were not many fed-

eral constitutional rights that could give rise to a cause of action (to

say nothing of the pragmatic difficulties of bringing lawsuits during

Jim Crow). Equal protection claims were notoriously difficult, the

Privileges or Immunities Clause suffered narrow interpretation,

244

and

pre-incorporation Fourteenth Amendment due process did little for

civil rights plaintiffs. In the First Amendment context, the right to free

speech was incorporated in 1925,

245

free assembly in 1937,

246

free

exercise in 1940,

247

and establishment in 1947.

248

Even then, many of

these clauses did not enjoy robust interpretation until later decisions.

Although Wolf notably incorporated the right against unreasonable

searches and seizures in 1949, it explicitly relegated plaintiffs to state

common law remedies, and the Fourth Amendment’s warrant juris-

prudence was not applied to states until three years after Monroe and

Mapp.

249

This left only a handful of federal rights that could be

invoked by § 1983.

It is unsurprising, then, that the recorded cases are few and that

those that do exist are about, for example, racial discrimination in

voting rights.

250

With so few rights to assert in a § 1983 lawsuit, there

were few lawsuits. But incorporation changed that. It suddenly

increased the scope of constitutional protections to apply against state

officers. In turn, this increased the number of constitutional violations,

giving rise to more § 1983 challenges to officers’ indiscretions, which,

as we have seen, called into question whether the existing remedial

system would be up to the task. These questions all came to the sur-

face in Monroe, and the Court responded the best it could.

Finally, there is an important point to make about how incorpo-

rating the Fourth Amendment contributed to the logic of Monroe.

Prior to incorporation of the Fourth Amendment, the Constitution

had nothing to say about whether state officers could unreasonably

Sasha Samberg-Champion, How To Read Gonzaga: Laying the Seeds of a Coherent Section

1983 Jurisprudence, 103 C

OLUM

. L. R

. 1838, 1842–43 (2003).

244

See, e.g., The Slaughter-House Cases, 83 U.S. 36 (1873).

245

See Gitlow v. New York, 268 U.S. 652, 666 (1925) (“[W]e may and do assume that

freedom of speech and of the press—which are protected by the First Amendment from

abridgment by Congress—are among the fundamental personal rights and ‘liberties’ pro-

tected by the Due Process Clause of the Fourteenth Amendment from impairment by the

States.”).

246

De Jonge v. Oregon, 299 U.S. 353 (1937).

247

Cantwell v. Connecticut, 310 U.S. 296 (1940).

248

Everson v. Bd. of Educ., 330 U.S. 1 (1947).

249

See Aguilar v. Texas, 378 U.S. 108 (1964).

250

See, e.g., Nixon v. Herndon, 273 U.S. 536 (1927) (striking down a Texas statute

prohibiting Blacks from voting in Democratic party primary elections).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 58 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 189

search and seize; it only barred federal officers from doing so. But

after incorporation, states were denied the power to authorize unrea-

sonable searches. This meant that the enumeration principle now

applied to nullify state laws purporting to authorize anything unconsti-

tutional. As noted in the earlier cases, officers acting under unconsti-

tutional authority were acting under no authority at all, a point not

lost on either the Congress that passed § 1983 or the Court in

Monroe.

251

In every case, a plaintiff suing an officer was met by a

defense of authorization. Insofar as the officer acted within a constitu-

tionally permissible realm of discretion, there was by definition no

constitutional harm and thus no damages.

252

This created an interesting issue for § 1983. If the law motivating

the officer’s action were unconstitutional, it could not have been

authorized by the state because, quite plainly, states cannot authorize

unconstitutional laws or practices. Given that this principle was

common knowledge, it is unsurprising that the statute does not use the

word “authorize” in any form; the inquiry was not whether the state

authorized or did not authorize an unconstitutional action. Such an

inquiry confuses the analysis, mainly because the officer can never be

authorized to do something unconstitutional. Rather, the inquiry is

into whether the officer acted under color of state law.

There were two distinct ways in which a person could act “under

color of” state law. The first is best understood by analogy to agency

law. Agents of the state act under color of state law when acting

within the scope of their employment. This includes, for example, law

enforcement officers who illegally break into homes, flashing their

“star and . . . police revolver”

253

in search of evidence—even if the

state expressly forbids its officers from engaging in that kind of

behavior. According to the logic of Monroe, this is because the officer,

by representing herself as an agent of the state, and by using her office

to the unlawful end, acts under the color of state law even though she

is not and cannot be authorized to act unlawfully. By contrast, if an

off-duty officer in Las Vegas were to break into the Bellagio’s money

251

In his concurrence in Monroe, Justice Harlan wrote:

[I]f one thing is very clear in the legislative history, it is that the Congress of

1871 was well aware that no action requiring state judicial enforcement could

be taken in violation of the Fourteenth Amendment without that enforcement

being declared void by this Court on direct review from the state courts.

365 U.S. 167, 194 (1961) (Harlan, J., concurring).

252

Unless the state, through legislation, nonetheless provided for them.

253

Monroe, 365 U.S. at 238 (Frankfurter, J., dissenting).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 59 21-MAR-12 13:28

190 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

vaults in a Rat Pack–inspired heist, she would not be doing so as an

agent of the state, and thus her actions would not trigger § 1983.

254

The second way to act “under color of” state law is to run amok

as the Ku Klux Klan once did, depriving individuals of their constitu-

tional rights with reasonable knowledge, from custom, that the state

threatened no interference to their anarchy. This view of “under

color,” elucidated by a crisp understanding of how the enumeration

principle operates in the administration of remedies, explains the out-

come in Monroe.

2. Bivens v. Six Unknown Named Agents

Like Monroe, Bivens too was a response to changes in the

common law. In Bivens, the Court held that the Fourth Amendment

freedom from unreasonable searches and seizures implied a cause of

action for individuals who were deprived of that right.

255

The case,

like Mapp and Monroe, is by its own terms driven by remedies.

256

And like those cases, it can be understood only in the context of frag-

menting common law remedies.

The basic premise of the enumeration principle should need no

reiteration. A government officer with an unconstitutional defense has

no defense at all. But this is a point about government power, not

about the cause of action and the facts surrounding it. Just because the

enumeration principle invalidates an officer’s defense does not mean,

ipso facto, that the plaintiff would have a remedy against the officer as

he would against any other tortfeasor. That is, the enumeration prin-

ciple is not by itself a remedy against government misfeasance, but

rather a core doctrine that enables the system of remedies that was

imagined and assumed in 1791.

It goes without saying that a plaintiff who sues for a constitutional

harm has faced a government-imposed harm, one that is qualitatively

different from injuries imposed by private parties and one that we

associate with totalitarian states and George Orwell.

257

Just as the

Court (including the dissent) recognized in Monroe, the Court in

Bivens reiterated that despite the enumeration principle, “power,

once granted, does not disappear like a magic gift when it is wrong-

254

In fact, whether the officer was acting as an agent of the state or not could track

common law principles of respondeat superior, with § 1983 only triggered for agents.

255

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

256

See generally Alfred Hill, Constitutional Remedies, 69 C

OLUM

. L. R

. 1109 (1969)

(discussing the implications of these cases for judicial understanding of constitutional

remedies).

257

Perhaps a fitting place for a pun about 1983 standing before 1984.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 60 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 191

fully used.”

258

There is something different about an unlawful trespass

when it is committed by the government, rather than a random indi-

vidual—or at least, many would perceive such a difference.

259

The Court then described why the common law could not protect

against these harms. Every reason provided by the majority opinion

relates to the postbellum schism between common law remedies and

constitutional rights. First, the Court noted, there was a whole host of

conduct proscribed by the Fourth Amendment that was not actionable

in many states.

260

The Court had “long since rejected the notion that

the Fourth Amendment proscribes only such conduct as would, if

engaged in by private persons, be condemned by state law.”

261

Again,

the easiest example is illegal wiretapping, which, while a Fourth

Amendment violation, did not necessarily give rise to a cause of

action under state common law. The underlying concern here is that

the scope of the Fourth Amendment could not be relegated to the

whims of state tort law. Under the Court’s view, the remedy for a

clear Fourth Amendment injury should not have to depend on

whether the common law is able to keep up and provide redress for

new harms such as unauthorized wiretapping.

Second, and related, the Court recognized that as the common

law remedies took their own course, they became less and less consis-

tent with, and sometimes “even hostile” to, federal and constitutional

policy.

262

Implicit in this analysis is the consideration of several

options for navigating the Constitution’s relationship with the

common law. The analysis implicitly rejects, for example, the idea that

constitutional rights ought to depend on state common law remedies,

or the idea that the Court should monitor those remedies to make

sure that they are consistently servicing constitutional rights. Instead,

the Court in Bivens chose to provide a cause of action in a federal

forum. This cause of action would serve constitutional goals neatly

with less anxiety about collateral effects on non-constitutional litiga-

tion. Thus, the Court quite literally constitutionalized a cause of action

that could independently provide relief for constitutional injuries,

258

Bivens, 403 U.S. at 392.

259

Id. at 391–92; see also Monroe v. Pape, 365 U.S. 167, 238 (1961) (noting that the

mere appearance of official authority can be “a factor of significance in dealings between

individuals”).

260

Bivens, 403 U.S. at 392–94.

261

Id. at 392.

262

Id. at 394–95; see also id. at 409 (Harlan, J., concurring) (“It seems to me entirely

proper that these injuries be compensable according to uniform rules of federal law, espe-

cially in light of the very large element of federal law which must in any event control the

scope of official defenses to liability.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 61 21-MAR-12 13:28

192 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

without having to rely on the availability of adequate remedies at

common law. The next Part explores these options more explicitly.

ONSTITUTIONAL

PTIONS

There was a system of common law remedies that once worked

quite nicely as a mechanism for judicial implementation of the

Constitution.

263

So nicely, in fact, that the drafters of the Constitution

took it for granted, and even assumed a one-to-one relationship

between constitutional rights and remedies.

264

Time passed, and

entropy undermined that system of remedies, a system into which the

Bill of Rights had dug its foundations. Nonetheless, the effects of that

change would not have been felt but for major changes in American

law and society, set into motion by the usual suspects: the Civil War,

the Reconstruction amendments, urbanization and immigration, the

rise of organized police forces, the exponential growth of federal gov-

ernment, and of course, incorporation of the Bill of Rights.

These forces and others combined to create two effects relevant

to this Article: They increased the number of rights, and they

increased the number of infractions. In doing so, they hurled the Bill

of Rights into the quotidian business of American courts, trans-

forming the amendments from rights in ink into rights oft invoked.

Every day in every state, constitutional rights were violated and are

violated. Meanwhile, the common law system of remedies fragmented,

and ceased to be the neat system of enforcement it once was.

This was startling to all walks of commentators.

265

Predictably,

understandably, and to the benefit of all, commentators had different

responses, but none sat unconcerned. The order we knew had slipped

to something “simple not yet understood,” and jurists were left with

263

Of course, this system existed at the expense of officers, even those acting in good

faith. The word “nicely” here is not intended to comment on the wisdom or fairness of such

a system, but rather to suggest that there was a system of remedies ready and available to

vindicate constitutional rights.

264

As Chief Justice Marshall put it, in terms that seem too simple today, “[t]he govern-

ment of the United States has been emphatically termed a government of laws, and not of

men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy

for the violation of a vested legal right.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803).

265

Even the dissenting Justices in many of these cases expressed serious concern. See,

e.g., Bivens, 403 U.S. at 415, 421–24 (Burger, J., dissenting) (providing a list of suggestions

for congressional legislation to deal with inadequate remedies and insisting that “I do not

question the need for some remedy to give meaning and teeth to the constitutional guaran-

tees against unlawful conduct by government officials. Without some effective sanction,

these protections would constitute little more than rhetoric”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 62 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 193

determining how to “make [it] good.”

266

The Court’s response came in

a series of opinions employing a similar methodology, from which this

Article selected three for consideration in light of the declining vitality

of the common law system as a vehicle for judicial implementation of

the Constitution. And when taking the arch of common law remedies

into account, these cases are remarkably explainable, and remarkably

transparent about their anxieties.

Scholars have unduly focused on Mapp, Monroe, Bivens, and

other such cases as creating an unmitigated, politically-motivated

explosion of “rights.”

267

This theory would, of course, seem true if we

ignore the dwindling availability of state law remedies that preceded

the relevant decisions. Rather than understanding these cases as a

recalibration aimed at promoting judicial efficiency and preserving the

constitutional equilibrium—motivated by concerns categorically indis-

tinct from Rehnquist Court doctrines seeking to preserve federalism

in a world that is increasingly connected by interstate commerce

268

—

266

DNA

. V

INCENT

ILLAY

, I will put Chaos into fourteen lines, in E

DNA

INCENT

ILLAY

: S

ELECTED

OEMS

: T

ENTENARY

DITION

153, 153 (Colin Falck ed.,

Harper Collins 1991) (1954).

267

Other consequences have also followed from the failure to account for the decline of

common law remedies as a system of judicially enforcing the Constitution. As time goes

on, scholarly analysis has become thick with anachronistic assumptions. This process begins

with legal education. The Fourth, Fifth, and Sixth Amendments are taught as “criminal

procedure,” with Entick presented as a curious antecedent to modern constitutional law;

remedies are afterthoughts, things to consider once we have agreed on the contours of the

right. In this analysis, the rich historical role of common law remedies is lost in sharp

distinctions drawn between concepts of property and tort on the one hand, and criminal

procedure on the other. This is true even though, to this day, most state and federal courts

handle both criminal and civil matters. Moreover, incorporation is treated as a series of

insular decisions, not a major transition in federalism that gave rise to all sorts of (conse-

quential) procedural friction. Students learn “constitutional law” as its own coherent field,

not as a tapestry of enumerated powers that weaves in and out of the common law. As a

consequence, an understanding of the role of common law remedies in preserving life and

liberty from unconstitutional government interference is lost.

268

The intuition that the Court should recalibrate so as to keep the Constitution’s provi-

sions “meaningful” recently surfaced in Judge Sutton’s concurrence rejecting a Commerce

Clause challenge to the recent health care law. According to Judge Sutton:

At one level, past is precedent, and one tilts at hopeless causes in proposing

new categorical limits on the commerce power. But there is another way to

look at these precedents—that the Court either should stop saying that a

meaningful limit on Congress’s commerce powers exists or prove that it is so.

The stakes of identifying such a limit are high because the congressional power

to regulate is the power to preempt, a power not just to regulate a subject co-

extensively with the States but also to wipe out any contrary state laws on the

subject. U.S. C

ONST

. art. VI, cl. 2. The plaintiffs present a plausible limiting

principle, claiming that a mandate to buy medical insurance crosses a line

between regulating action and inaction, between regulating those who have

entered a market and those who have not, one that the Court and Congress

have never crossed before.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 63 21-MAR-12 13:28

194 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

critics have dismissed this era of decisions as “political.” As a result,

many have called for overturning or severely limiting these cases.

The Court has not sat agnostic. The exclusionary rule and Bivens

actions have been significantly scaled back.

269

In potential tension

with the enumeration principle, the doctrine of qualified immunity

allows courts to announce that an officer has acted unconstitutionally,

yet cloak him with immunity if “clearly established law”

270

does not

forewarn that the action was unconstitutional.

271

Even the members of

Thomas More Law Ctr. v. Obama, No. 10-2388, 2011 WL 2556039, at *22 (6th Cir. June 29,

2011) (Sutton, J., concurring). The idea implicit in this analysis is that courts can, and some-

times should, adopt tenable ways to keep the Constitution’s provisions meaningful, even if

those means are novel or, as Judge Sutton puts it, represent “line[s] . . . that the Court and

Congress have never crossed before.” Id.

269

Most recently, see Davis v. United States, 131 S. Ct. 2419, 2419 (2011), which held

that searches conducted in objectively reasonable reliance on binding appellate precedent

are not subject to the exclusionary rule. Such a holding can only be justified because the

Court currently views the exclusionary rule as a “policy” tool which is not constitutionally

required.

270

In the context of § 1983, qualified immunity is “a defense that shields officials from

suit if their conduct ‘d[id] not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Ortiz v. Jordan, 131 S. Ct. 884, 888 (2011)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has estab-

lished a two-step test for determining whether a government official is entitled to qualified

immunity. First, a court should ask whether “the facts alleged show the officer’s conduct

violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001), modified,

Pearson v. Callahan, 555 U.S. 223, 236 (2009). If so, then the court must determine

“whether the right was clearly established” at the time of the alleged violation. Id. The

Court has qualified this approach, stating that “the sequence set forth [in Saucier],”

although “often appropriate,” is not mandatory. Pearson, 555 U.S. at 236.

271

It is important to pause here and explain this concern. The enumeration principle, as

laid out in this paper, is an articulation of what it means to have popular sovereignty.

Power originates from the people, and the government only has power insofar as the

people granted that power to the government. In this system, a right is an exception to

conferred power—for example, the federal government has power to regulate interstate

commerce, but it may not do so in a way that violates the First Amendment. Thus, the

notion that the Court can agree that an officer violated the Constitution and yet “immu-

nize” the officer from a cause of action is in serious tension with the enumeration principle.

It allows the government to confer a protected status upon the officer, even though the

people never actually conferred this power or privilege onto the government—indeed, a

determination that the act was unconstitutional is a determination that such power was

actually withheld. Nor, if antebellum Court precedent is any indication, see supra Part I,

was this power “impliedly” conferred. Of course, there were various immunities at

common law which are not inconsistent with the enumeration principle. For example, an

officer “who arrests someone with probable cause is not liable for false arrest simply

because the innocence of the suspect is later proved.” Pierson v. Ray, 386 U.S. 547, 555

(1967) (citations omitted). That is because once an officer had probable cause, he was

legitimately vested with authority to make an arrest, and that authority could serve as a

defense in a false arrest action. Id. But modern qualified immunity has not limited itself to

this logic. See Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting)

(noting that the Court “has not purported to be faithful to the common-law immunities

that existed when § 1983 was enacted, and that the statute presumably intended to sub-

sume”). Indeed, in Pierson, after noting the common law example that “[a] policeman’s lot

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 64 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 195

the Court who are most historically minded have dismissed Monroe as

engaging the Court “in a losing struggle to prevent the Constitution

from degenerating into general tort law.”

272

This is an ironic justifica-

tion for qualified immunity, as the Constitution was designed to inter-

weave into tort law, so that any officer could be sued for doing

something that violated the Constitution, but no officer could raise a

legally cognizable defense in such a suit. Thus, the Constitution does

not “degenerate” into tort law; it breathes through it. The offensive

assertion of constitutional rights, primarily through tort law, is the

remedy against officers who inflict harm on individuals without consti-

tutional authority by, for example, harassing speakers for their view-

points, or engaging in unreasonable searches and seizures without

ever pressing charges. The defensive assertion of constitutional rights

is limited for those who find themselves in lawsuits or fending off

prosecutions.

273

These assertions work in tandem, not as substitutes.

One might still think Mapp, Monroe, and Bivens were all wrong.

The purpose of this Article is not to weigh in on that discussion, but to

force the debate into more precise contours. The goal, first and fore-

most, is to understand the context in which these decisions were made.

is not so unhappy that he must choose between being charged with dereliction of duty if he

does not arrest when he has probable cause, and being mulcted in damages if he does,” the

Court went on to conclude that “the same consideration would seem to require excusing

him from liability for acting under a statute that he reasonably believed to be valid but that

was later held unconstitutional on its face or as applied.” 386 U.S. at 555. Perhaps this

reasoning can be reconciled if § 1983 only authorizes relief for “clear” constitutional trans-

gressions, and does not support a cause of action otherwise. There is no doubt that

Congress, when enacting supplementary causes of action against those acting under color

of state law, is free to require the plaintiff to show that his clearly-established right was

violated. This would then leave other violations of constitutional law (those that are

unclear) to other causes of action that are available against any individual, rather than just

officers, such as assault, false imprisonment, trespass, and other state torts, where an

officer acting without constitutional authority is—or, at least, traditionally was—treated as

having no defense at all. Assuming this correctly characterizes the text and history of the

statute, § 1983 actions seeking damages for the violation of “unclear” constitutional rights

are correctly dismissed on Rule 12(b)(6) motions for failure to state a claim—i.e., the

reason for dismissal is a failure to allege the appropriate elements of a statutory claim. A

different approach is that taken by Justice Scalia: “The § 1983 that the Court created in

1961 [in Monroe v. Pape] bears scant resemblance to what Congress enacted almost a

century earlier. . . . We find ourselves engaged, therefore, in the essentially legislative

activity of crafting a sensible scheme of qualified immunities for the statute we have

invented.” Crawford-El, 523 U.S. at 611–12 (Scalia, J., dissenting). In other words, it is

acceptable, at least in some circumstances, for a court to make up a doctrine to control the

consequences of a made-up cause of action. Of course Justice Scalia’s view is premised on

the fact that the result in Monroe was completely invented by the Court.

272

Crawford-El, 523 U.S. at 611 (Scalia, J., dissenting).

273

Of course, this Article has not strayed into discussing the writ of habeas corpus,

which can be seen as both offensive and defensive. Habeas corpus puts a prisoner or

detainee in an offensive posture against his jailor, but for the defensive reason of freeing

himself from detainment.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 65 21-MAR-12 13:28

196 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

Currently, the debate over these decisions has taken a strange form,

one not quite tethered to the problems the Court was addressing. It is

a debate over solutions without having first identified the problem.

The primary debates about judicial methodology today are, at their

most meaningless, about “judicial activism” and “judicial restraint,”

words that provide almost no uncontroversial guidance. At their most

robust, scholars, law students, and the public discuss judicial method-

ology as a debate between originalism and living constitutionalism,

and everything in between.

274

These methodologies have received their fair share of attention

and will no doubt receive more. But this debate inadequately

describes cases like Mapp, Monroe, and Bivens—judicial decisions

reached in the face of an ever-changing relationship between the

Constitution and the common law. In such cases, these “methodolo-

gies” are labels for conclusions, not instructions for judges. This

Section lays out four potential avenues of jurisprudence. None map

cleanly onto originalism or living constitutionalism; all are about the

relationship between the Constitution and the common law of the sev-

eral States. The discussion does not take a position on the wisdom or

correctness of the options; rather, it highlights some potential argu-

ments, and seeks to create a starting point for thinking about,

debating, and ultimately accepting or rejecting the various options.

A. Option 1: The Stoic Constitution

The first option is for federal courts to distinguish between

common law remedies and the Constitution, and to allow constitu-

tional rights to be expanded or contracted in accordance with the state

common law remedies that implement them. The only role that a

court would play is to uphold the enumeration principle: In any case

that comes before them, courts should interpret the Constitution

where necessary and consider unconstitutional actions null and void.

This allows judges to expound the rights that individuals do have, but

outsources the messy business of their implementation to other insti-

tutions of American democracy—state courts for interpreting state

common law, state legislatures for amending and adding to the

common law, and Congress for providing federal remedies where it

has authority and where the political process has determined that

state remedies are inadequate.

274

Compare, e.g., A

NTONIN

CALIA

, A M

ATTER OF

NTERPRETATION

: F

EDERAL

OURTS AND THE

(1997) (presenting an originalist theory of constitutional interpreta-

tion), with P

AMELA

S. K

ARLAN

, G

OODWIN

& C

HRISTOPHER

H. S

CHROEDER

, K

EEPING

AITH WITH THE

ONSTITUTION

(2009) (presenting theory of “constitutional fidelity” that

goes beyond the specific intent of the Constitution’s authors).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 66 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 197

The stoic constitutionalist takes this view, separates the common

law from the Constitution, and leaves the former to be implemented

and amended by public officials who are informed by (and generally

sworn to uphold) the latter. This methodology calls to mind the posi-

tion famously voiced by Learned Hand, that one should “read [the

Bill of Rights] as admonitory or hortatory, not definite enough to be

[a] guide[ ] on concrete occasions, prescribing no more than that

temper of detachment, impartiality, and an absence of self-directed

bias that is the whole content of justice . . . .”

275

Employed in Mapp,

this methodology would affirm one’s right not to be unlawfully

searched, but would defer the remedy to the state. The state could

employ the exclusionary rule, a common law cause of action for tres-

pass, or any other remedy. But if the state remedy did not provide

much—if, for example, the state had robust officer immunities, or pro-

vided only nominal damages absent physical injury, or if juries in that

state were of the law and order ilk—that would not be an issue for the

federal judiciary.

276

While it may seem that way, this is not precisely

tantamount to unincorporating the Bill of Rights. State officials, to the

extent that they are sworn to uphold the Constitution, are indeed

bound by the Bill of Rights. So, while they are free to construe the Bill

of Rights, they must at least do so in good faith.

This approach finds some accord in two major moments in feder-

alism. The first is the Madisonian Compromise, where, at the founding

debates, it was agreed that Congress would have discretion whether to

create federal courts other than the Supreme Court.

277

This contem-

plated the potential for a Union where federal courts play almost no

role in vindicating federal or constitutional rights (other than what fell

within the Supreme Court’s appellate jurisdiction, which is subject to

“Exceptions . . . [and] Regulations as the Congress shall make,” and

the Court’s original jurisdiction, which includes “all cases affecting

ambassadors, other public ministers and consuls, and those in which a

275

EARNED

AND

ILL OF

IGHTS

34 (1958).

276

Justice Cardozo, sitting on the high court in New York, articulated this approach in

holding that the exclusionary rule was not required by the New York Constitution. People

v. Defore, 150 N.E. 585, 589 (N.Y. 1926) (“We do not know whether the public, repre-

sented by its juries, is to-day more indifferent to its liberties than it was when the immunity

was born. If so, the change of sentiment without more does not work a change of

remedy.”).

277

See Martin H. Redish & Curtis E. Woods, Congressional Power To Control the

Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. P

. L.

. 45, 52–54 (1975) (describing the Compromise as “giv[ing] Congress the option to

create or not create [lower federal] courts”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 67 21-MAR-12 13:28

198 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

state shall be party”

278

). The federal right, and the person asserting it,

would be left to the States.

The second moment is Erie Railroad Co. v. Tompkins, in which

the Court declared that “[t]here is no federal general common law,”

and that:

Congress has no power to declare substantive rules of common law

applicable in a state whether they be local in their nature or “gen-

eral,” be they commercial law or a part of the law of torts. And no

clause in the Constitution purports to confer such a power upon the

federal courts.

279

The implications of this language for the Constitution’s relationship

with the common law are unclear at best. This Article takes no posi-

tion on that question, as it is far too vast to explore here. On the one

hand, Erie could be interpreted narrowly, to hold only that when fed-

eral courts sit in diversity, they must apply state law when dealing with

substantive areas left to the states (for example, contracts and torts).

This would not disturb the application of common law remedies to

constitutional rights insofar as those remedies are deemed constitu-

tionally required. In other words, the fact that Erie says there is no

federal general common law does not foreclose federal particular

common law, including the federal common law of remedies for viola-

tion of federal rights. On the other hand, Erie provides some support

for the viewpoint taken by a stoic constitutionalist. The absence of a

federal common law might suggest that the vindication of federal

rights is not something the courts should improvise in a manner akin

to general common law, but rather a matter to be addressed by state

common law or, alternatively, statutes that Congress may pass. The

Constitution declares the rights, but allows the political process to

bring them to fruition.

This, of course, leaves much to the majorities. As Justice Holmes

put it in a letter, “I always say, as you know, that if my fellow citizens

want to go to Hell I will help them. It’s my job.”

280

The stoic constitu-

tionalist, like Justice Holmes, will have a preference for the political

process. Yes, there are constitutional rights, a stoic constitutionalist

will of course acknowledge, but courts are not the place to tease out

exact meanings from impossible ambiguities. This view is likely to

engender strong feelings. Some will no doubt feel repulsed by the pos-

sible consequences of this approach, and remember its failures, such

as when the Court deferred to democracy on the practice of

278

U.S. C

ONST

. art. III, § 2.

279

304 U.S. 64, 78 (1938).

280

Michael Herz, “Do Justice!”: Variations of a Thrice-Told Tale, 82 V

. L. R

. 111,

114 (1996) (quoting Letter from Oliver Wendell Holmes to Harold J. Laski (Mar. 4, 1920)).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 68 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 199

mandatory sterilizations.

281

Others will think of its virtues, recalling

Lochner v. New York, in which Justice Holmes stated in dissent that

“[g]eneral propositions do not decide concrete cases.”

282

What scant evidence is available from the Founding suggests that

those in 1791 assumed that the common law, coupled with the enu-

meration principle, would be there to vindicate constitutional rights,

as many of them (life, liberty, and property) are and were considered

natural rights. And perhaps, then, the Due Process Clause is meant to

capture much of this, and to require that these natural rights find

some sort of vindication. The history reviewed in this Article cannot

answer this question; rather, it reveals only that the Court has, to date,

been quite anxious about stoic constitutionalism. Most notably, its

short experiment in Wolf, overturned by Mapp, suggests that it has

rejected a world in which constitutional rights are left to the devices of

common law.

In responding to concerns about dwindling common law reme-

dies, the stoic constitutionalist believes that the political process

should protect these rights, and that that process will be degraded if

participants believe the safekeeping of rights is well placed with the

federal courts. Leaving rights to federal courts might, in the long run,

be a losing proposition. The vitality of rights depends on a culture that

respects and jealously guards them; if that culture is relinquished such

that the political process is comfortable with stripping remedies for

constitutional rights, it is unclear how long judges can hold back the

tides of political sentiment, as they too are drawn from the same cul-

ture. This, of course, draws in another classic debate in law: whether

and to what extent courts actually shape culture.

283

The Court’s

response to dwindling common law remedies, as seen in Mapp,

Monroe, and Bivens, is problematic for the stoic constitutionalist—he

will maintain that the response departed from the right course and

placed the Court atop a kingdom far too vast.

B. Option 2: Rights Preservation

The second option is to do as the Court did in Mapp, Monroe,

and Bivens: adapt constitutional rights in the face of declining

281

See, e.g., Buck v. Bell, 274 U.S. 200, 207 (1927) (“Three generations of imbeciles are

enough.”).

282

198 U.S. 45, 76 (1905) (Holmes, J., dissenting).

283

See, e.g.,G

ERALD

N. R

OSENBERG

, T

OLLOW

OPE

: C

OURTS

RING

BOUT

OCIAL

HANGE

? 343 (1st ed. 1991) (discussing the debate over courts’ ability to

produce social change); Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties

Revolutions, 82 V

. L. R

. 1, 6, 19–23 (1996) (“[T]he Court’s capacity to protect minority

rights is more limited than most justices or scholars allow.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 69 21-MAR-12 13:28

200 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

common law remedies with the aim of maintaining some level of equi-

librium.

284

In Mapp, the Court required states to adopt the exclu-

sionary rule—a rule with origins in common law ideas about

property—as a necessary remedy for vindicating the Fourth

Amendment right to freedom from unlawful searches and seizures. As

many have pointed out, the exclusionary rule is not explicit in the

Constitution. But this does not mean that Mapp was, ipso facto, a

naked policy choice by jurists sympathetic to criminal defendants.

Rather, the Court had to select among the options set out here: (1)

essentially unincorporate the Fourth Amendment by leaving enforce-

ment to dwindling state law remedies, (2) incorporate the logic of the

common law remedy and require it as its own constitutional remedy,

namely the exclusionary rule, (3) require the common law remedies

that were available in 1868, or (4) leave enforcement to state remedies

but monitor those remedies so that they meet some federally accept-

able baseline.

The Court chose the second option for reasons made clear in its

opinion. It was committed to keeping the Fourth Amendment incor-

porated and found unpalatable the notion that the contours of that

right in practice would be shaped by circumstances of state common

law. It rejected the third and fourth options because those would

require constant oversight of state remedies, creating administrability

issues regarding how to maintain appropriate baselines. This kind of

monitoring, for which neutral principles are difficult to discern, could

significantly strain the role of federal courts in a federalist system.

So too with Monroe and Bivens. The choices were to (1) abandon

federal enforcement of constitutional rights in the face of withering

state law remedies, (2) adapt § 1983 and devise a cause of action so

that constitutional injuries would have federal remedies that are not

contingent on first spending years pursuing claims in the state systems,

(3) require state courts to provide remedies not inconsistent with

those available in 1791 and 1868, or (4) have federal courts sit as

courts of constitutional error correction for civil claims in state courts,

with federal courts deciding whether state common law practices were

interfering with the vindication of federal rights. Again, it chose the

second option, and for largely the same reasons.

In making these decisions, the Court saw itself in a familiar role,

dealing with constitutional rights the way an equity court deals with

legally protected interests, designing remedies to ensure that the right

284

See Lawrence Lessig, Fidelity in Translation, 71 T

. L. R

. 1165, 1166 (1993)

(“[A]ny complete account of interpretive fidelity must allow—indeed require—changes in

constitutional readings even when there has been no change in the constitutional text.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 70 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 201

would be adequately protected. By doing so, the Court has essentially

adopted a constitutional theory of remedies that has escaped much

explicit attention: that the Constitution states a purpose, as found in

its text and in the Bill of Rights, and the role of federal courts is to

implement this purpose by providing an adequate remedy for each

right. The alternative vision, adopted by the stoic constitutionalist, is

that the Constitution delegates its implementation to federalism and

the democratic process while leaving courts with only the power to

declare unconstitutional actions null and void.

C. Option 3: A Baseline System of Common Law Remedies

The third option would be to require a due process right to a

remedial process for constitutional rights that meets certain baseline

criteria. This is the equivalent of announcing that a common law

remedy for a constitutional injury is constitutionally required, and that

state courts, so long as they have general jurisdiction, must hear these

claims. Thus, actions necessary to protect constitutional rights, such as

trespass or assault, would all be constitutionally required—a state leg-

islature could not pass a law saying, for example, “no trespass actions

can result in money damages.” Moreover, the Court would enforce a

baseline set of procedures guaranteed to protect the vitality of such

suits. So, for example, a statute of limitations lasting only one week

might be constitutionally suspect insofar as it constrained the constitu-

tional right. In addition, such a view might posit that officer immuni-

ties offending the enumeration principle would be unconstitutional, as

would any regulations that burden the constitutional right as it is adju-

dicated in state courts.

The Court hinted in this direction in Wolf insofar as it relied on

the factual assumption that state courts would provide adequate reme-

dies, but it never committed itself to monitoring those remedies.

Indeed, after parties repeatedly called on the Court to monitor those

remedies, the Court backed away from Wolf entirely. The immediate

problem with this approach is apparent: What is constitutionally

required and what is not? If a week-long statute of limitations is insuf-

ficient, what would be sufficient? A month? And would all immunity

be unconstitutional? Could the state cap damages?

These are difficult and perhaps fatal questions. But one might set

the baseline as requiring a due process right to a remedial process not

inconsistent with the remedies available in 1791 and 1868—those

remedies that were available when the Bill of Rights and the

Reconstruction Era Amendments were ratified. This is analogous to

what the Court has done with the writ of habeas corpus, where it has

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 71 21-MAR-12 13:28

202 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

held that “at the absolute minimum, the Suspension Clause protects

the writ ‘as it existed in 1789.’”

285

But problems remain. Are all of the

features of these remedies required? Presumably the goal here is to

provide a meaningful remedy, so perhaps the Court could accept any

remedy that looks like a common law analogue, unless someone could

challenge it as insufficiently meaningful. This approach also resembles

the due process requirement that “deprivations of life, liberty, or

property by adjudication be preceded by notice and an opportunity

for a hearing appropriate to the nature of the case.”

286

Similarly, in

that context, the requirements are vague: Hearings must be “appro-

priate, fair, adequate, and such as is practicable and reasonable in the

particular case.”

287

That interpretation could be imported here,

requiring that common law remedies be similarly appropriate, fair,

adequate, and such as is practicable and reasonable.

While the Due Process Clause surely protects some baseline

amount of process, the Court did not adopt this route as a primary

way of dealing with dwindling common law remedies. The closest the

Court actually came to this approach was in Bivens, where it implied a

cause of action in federal court for constitutional injuries.

288

D. Option 4: The Laboratories of Democracy

The fourth approach, like the first, would leave the entire ques-

tion of rights and remedies to the state, accepting a diversity of

approaches. The difference is that here, the Court would monitor and

preserve a baseline of remedies in each state. This differs from option

three in that the remedies here would not have to be the ones avail-

able at common law. For example, Montana may choose to serve the

Fourth Amendment by allowing those whose rights are violated to

petition the police department to discipline the officer, and by pro-

viding state court review of this determination. At the same time, New

York may provide a trespass remedy, and Florida could employ the

exclusionary rule.

This option better describes the majority disposition in Wolf,

given that the Court’s precise reasoning was that states had adequate

remedies insofar as they had the trespass remedy or politically

accountable police departments. The Court’s legal conclusion—that

285

INS v. St. Cyr, 533 U.S. 289, 301 (2001) (quoting Felker v. Turpin, 518 U.S. 651,

663–64 (1996)).

286

16B A

. J

. 2

Const. Law § 983 (2009) (citing Jones v. Flowers, 547 U.S. 220

(2006)).

287

Id. § 1007 (citations omitted).

288

403 U.S. 388, 389 (“[A] federal agent acting under color of his authority gives rise to

a cause of action for damages consequent upon his unconstitutional conduct.”).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 72 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 203

the absence of an exclusionary rule did not offend the Fourteenth

Amendment’s Due Process Clause—was premised on the factual con-

clusion that states had remedies other than the exclusionary rule that

were sufficient to satisfy due process.

289

The implication here is that

the Court could review each system of remedies to ensure that they

were sufficient to protect the constitutional right at stake. Thus, if a

state provided no remedy whatsoever, the Court could default to

requiring exclusion or some other remedy so as to satisfy whatever the

Due Process Clause may require.

This state-by-state approach also mirrors the Court’s general

monitoring of constitutional issues in state criminal trials on a case-by-

case basis. For example, in Penry v. Lynaugh,

290

the Court developed

a doctrine designed specifically in the context of Texas’s death penalty

regime. The Constitution allows Texas to impose the death penalty

(even on mentally retarded offenders, at least until the Court’s deci-

sion in Atkins v. Virginia

291

), and to regulate its criminal justice

system in general, but cases like Penry step in when aspects of that

system fall beneath a constitutional threshold—there, the adequacy of

the jury instructions as they pertained to mitigating evidence.

292

This,

of course, is not unfamiliar. It is, in essence, how federalism works

between state and federal courts—the state courts handle matters

within their jurisdiction, and the Supreme Court can correct federal or

constitutional errors as they arise. There is some reason to think this is

how the Court will approach restrictions on Second Amendment

rights. Rather than requiring any particular regime, the Court will

accept as-applied challenges to particular features of different state

regulations.

293

Similarly, in determining the adequacy of state law

remedies for constitutional rights, the Court could develop case-by-

case doctrines depending on what avenue of relief a state chooses to

provide.

Again, the history seems agnostic on this, offering little more

than the Court’s rejection of this methodology after briefly flirting

289

Wolf v. Colorado, 338 U.S. 25, 31 (1949) (“[T]he exclusion of evidence may be an

effective way of deterring unreasonable searches, [but] it is not for this Court to condemn

as falling below the minimal standards assured by the Due Process Clause a State’s reliance

upon other methods which, if consistently enforced, would be equally effective.”).

290

492 U.S. 302 (1989).

291

536 U.S. 304 (2002) (holding that death is an “excessive” punishment for a mentally

retarded criminal, in violation of the Eighth Amendment).

292

Penry, 492 U.S. at 328 (holding in part that Texas could not execute the defendant

because the jury had not been adequately instructed to consider mitigating evidence).

293

See, e.g., McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (holding that the

Second Amendment, by virtue of the Fourteenth, should be applied in a challenge against

two Illinois cities’ handgun bans and several related city ordinances).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 73 21-MAR-12 13:28

204 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

with it in Wolf. One major concern, of course, is that this approach

would submerge the courts with litigation challenging various aspects

of state remedies, particularly tort remedies, until all of the non-

frivolous and many of the frivolous challenges had been exhausted. It

also invites the Court to rummage around state procedures, inspecting

them for overall federal quality. This is something of an uncomfort-

able position for a federal court, and certainly less administrable than,

for example, simply requiring the exclusionary rule.

ONCLUSION

Perhaps, of the four options available to the Court, we could con-

clusively decide that one makes the most sense from, for example, an

originalist perspective. But that is precisely the question: Which of

these options makes the most sense and why? This was the question

the Court was tackling in the discussed cases and the question this

Article seeks to bring back to prominence. The narrative here began

with answering questions—what happened to the original system of

remedies and how did the Court respond?—but now ends by posing

an even more difficult question: What is the appropriate way to deal

with constitutional rights that are being deflated by dwindling

common law remedies?

The answer to this question should be the focus of debate. The

history highlighted in this Article reveals that these cases have been

criticized without a firm understanding of what exactly they were

resolving: how to negotiate the changing relationship between the

Constitution and the common law remedies that were assumed to

implement the Constitution. How we resolve each case in turn defines

the relationship between the Constitution and the common law.

294

Thus, the most important lesson the history may provide is not

how to answer each specific question, but that we should answer the

specific questions with an overarching and principled understanding

294

A good example is United States v. Jones, No. 10-1259 (U.S. Jan. 23, 2012)—handed

down too late for this Article to discuss substantively—in which the Court held that the use

of a GPS device to monitor a vehicle’s movements for an extended period of time consti-

tutes a search for purposes of the Fourth Amendment. There, Justice Scalia wrote for the

majority—which included Chief Justice Roberts, Justice Kennedy, Justice Thomas, and

Justice Sotomayor—that the Fourth Amendment protects, “at a minimum,” slip op. at

10–11, the degree of protection afforded by the 18th-century trespass remedy against

searches of “persons, houses, papers, and effects.” Id. at n.8. By contrast, Justice Alito’s

concurrence, joined by Justices Ginsburg, Breyer, and Kagan, derided the reliance on

“18th-century tort law,” concurring op. at 1, suggesting that “it is almost impossible to

think of late 18th-century situations that are analogous” to GPS devices. Concurring op. at

3. As the lineup in Jones suggests, where one lands on this issue depends not on politics or

ideology, but on how one understands the relationship between constitutional rights and

the common law remedies that once protected them.

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 74 21-MAR-12 13:28

April 2012] THE PATH OF THE CONSTITUTION 205

of how the Constitution relates to the common law. It makes little

sense simply to endorse or reject the exclusionary rule. That position

should be the outcome produced by a defensible theory of constitu-

tional remedies. The relevant question is whether the Mapp-Monroe-

Bivens approach is correct because the Court is supposed to maintain

remedies so as to preserve constitutional rights, or is wrong because,

as the stoic constitutionalist would suggest, the common law remedies

are severable from the Constitution, and a remedy does not necessa-

rily inhere to constitutional rights.

In other words, we should stop debating these decisions as though

they are merely the outcome of policy debates among judges. The

problem with doing so is two fold. First, it is descriptively wrong and

unfair to the jurists who wrestled with the more complex issues.

Second, it implies that such precedent is somehow less legitimate

because it is “policy,” and thus can be replaced with other “policy”

decisions.

295

This unnecessarily politicizes the judiciary by implying

that jurists merely determine legal policy. They do not, or at least,

they should not be doing so. The task, rather, is to determine what to

do when constitutional rights were crafted on the assumption that

there would always be common law remedies to address them,

particularly now that common law remedies have atrophied in impor-

tant ways.

Thus perhaps the primary constitutional debate should not be

between “living constitutionalists” and “originalists,” given that all of

the possible options require taking some action (or inaction) that was

not contemplated in 1791 or 1868. Rather, the debate should be which

set of actions is most consistent with the principle and structure of the

Constitution as it was ratified in 1791 and 1868—and that, unfortu-

nately, is not an easy question.

This Article explores the idea of “constitutional rights” by telling

the story of their judicial enforcement, particularly how the nature of

that enforcement was threatened, and how the Court responded. It

does not attack or defend the Court’s response, but understands it in

the context of these challenges. That exercise ended by teasing out

four jurisprudential options. None of these options are entirely satis-

fying. Deflating the constitutional rights embodied in cases like Mapp,

Monroe, and Bivens without restoring the original system of constitu-

tional remedies would result in a net loss for constitutional rights—a

295

For example, because the Court has come to understand the exclusionary rule as a

prudential doctrine and a policy tool, it now determines whether exclusion should apply on

the basis of whether its application would constitute sound policy. See, e.g., Davis v. United

States, 131 S. Ct. 2419, 2427 (2011) (applying the rule that courts should weigh the “real

deterrent value” against the “substantial social costs” of exclusion).

\\jciprod01\productn\N\NYU\87-1\NYU104.txt unknown Seq: 75 21-MAR-12 13:28

206 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:132

result inconsistent, or at least in deep tension with, originalist princi-

ples. After all, the Framers preserved these rights not because they

are interesting in the abstract, but because they are fundamental to a

free life. Yet preserving these liberties by adhering to Mapp, Monroe,

and Bivens poses its own challenges for originalism. At the same time,

discarding these cases and opting to keep alive the original system of

remedies could deeply threaten values inherent in federalism—again,

in a way not originally contemplated. At end, there is no easy answer

for which methodology most faithfully serves our Constitution, but for

those who care about the reality of constitutional rights, this is the

question.