Disaggregating Constitutional Torts
Jeffries, John C., Jr., The Yale Law Journal
In the four decades since Monroe v. Pape,(1) the Supreme Court has crafted a vast body of law on money damages for violations of constitutional rights. After twenty-five years of following those decisions, I have come to think that Monroe was wrong. The error lay not in the result, which was admirable, but in the attribution of that result to a Reconstruction-era statute applicable indifferently to all rights. Treating the availability of damages as a transsubstantive exercise in statutory interpretation obscures important differences among rights and suppresses clear thinking about remedies. A better strategy would abandon the "one-size-fits-all" approach and adapt remedies to specific rights. The availability of money damages would then depend on an assessment of their role in enforcing particular rights--and especially on the availability of alternative remedies that make damages more or less needful.
The Monroe Court based its decision on the Civil Rights Act of 1871, now codified at 42 U.S.C. [sections] 1983,(2) citing famously inapposite legislative history for the proposition that Congress had imposed federal damages liability for violations of federal rights by state officers, regardless of the adequacy of state law.(3) Whether that was in fact Congress's intent is still controversial,(4) although the weight of opinion supports the Court's view.(5) More compelling than the shards of legislative history was the manifest hardship of making civil rights plaintiffs demonstrate the inadequacy of state law before seeking federal relief. One need only think of the difficulty of proving selective prosecution to imagine the burden of having to show a "custom" or "usage" of indifference to federal rights in order to get redress in any individual case. Of this very powerful reason for creating a free-standing federal remedy, the Monroe Court said nothing at all.
Monroe thus began a jurisprudential tradition that still afflicts the law of [sections] 1983. Questions are asked and answered as if they were of interest only to antiquarians.(6) The history invoked is never conclusive, often irrelevant,(7) and sometimes absurd.(8) Results are attributed to offhand remarks of long-dead legislators who could not have foreseen the issues at hand or the constitutional landscape in which they arise. One can only sympathize with Justices who feel obliged to divine what members of the Forty-second Congress would have thought, had they thought, of something that never crossed their minds. It's rather like asking, "If I had a sister, would she like cheese?"(9)
Worse, the relentless historicity of [sections] 1983 decisions diverts attention from the merits. Important issues are resolved without discussion of any reason why we should care. In Monroe, for example, the Court expressly disavowed "policy considerations" in ruling that municipalities could not be sued under [sections] 1983.(10) In Monell v. Department of Social Services, the Court again ignored policy concerns in reaching precisely the opposite conclusion.(11) One may admire the Court's willingness to admit error, but surely, somewhere along the way, the Justices should have considered whether municipal liability is a good idea. Either they had no view on that question, or they felt constrained by the methodology of statutory interpretation not to reveal their reasoning.
Fortunately, the preoccupation with history seems to be receding. As precedents accumulate and the field matures, the Court increasingly turns to its own prior utterances as the starting point for analysis. This approach allows more room for consideration of policy and practicality. Recent opinions say less about the views of Representatives Blair and Shellabarger(12) and more about the advantages and disadvantages of competing positions.(13) Of course, the results remain controversial, but the shift toward candid discussion of the concerns that might move a rational Justice (or student or professor) to favor one outcome over another is surely to be welcomed. …