If there is a historical pattern in the law of constitutional remedies, it is that the growth of remedial doctrines has responded to the expansion of substantive rights. Early in our history, the Supreme Court recognized few constitutional rights, and the remedial doctrine consisted mainly of the possibility of bringing suit under the traditional common law. As new rights were recognized, pressure grew for remedial doctrines that would effectively enforce those rights. Congress and the Supreme Court responded to the call by authorizing lawsuits for prospective relief and for damages. This discussion traces, in broad strokes, the history of these developments. It is organized by topic, dealing first with sovereign immunity, then with remedies against officers and local governments.
From the beginning of our history as a nation, the central obstacle to an effective system of constitutional remedies has been the doctrine of “sovereign immunity”: that is, the principle that the government may not be sued without its consent. This is not an obstacle to raising the Constitution as a shield, but it immediately becomes a problem whenever someone would like to use the Constitution as a sword, naming the government as the defendant. (This distinction between “sword” and “shield” is described in the Introduction.) In a sense, all of the law of offensive remedies is a study of exceptions to sovereign immunity, for sovereign immunity is a constraint within which all the remedies discussed in succeeding sections have been developed. Therefore, a good place to begin our history is by examining this obstacle that must be overcome if there are to be any offensive remedies at all, and by describing the inroads that have been made upon it.