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Disaggregating Constitutional Torts |
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John C. Jeffries and Jr. [View as PDF]
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110 Yale L.J. 259 (2000)
This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe model of statutory interpretation, but at odds with the differences among rights in enforcement strategies and opportunities. In fact, even under current doctrine, various constitutional claims do have--and under any plausible understanding, should have--remedial variation. Restructuring the law of § 1983 to accommodate this insight would invite recognition of the differences among rights and promote clear thinking about remedies to enforce them.
Disaggregating constitutional torts would reorient our thinking in three important ways. First, it would inhibit the tendency, evident in virtually all discussions of § 1983, to cite one kind of constitutional violation as if it stood for all. Reasoning based on one type of unconstitutionality will apply across the board only if the particular represents the general. In constitutional tort law, that is rarely true. Virtually any assertion about the role of qualified immunity, or the availability of alternative remedies, or the utility of damage actions in enforcing constitutional rights, will make no sense in some contexts. That does not mean that we should abandon theoretical and systematic analysis of constitutional tort remedies, but it does suggest a need for caution in generating comprehensive doctrine from specific examples.
Second, disaggregation of constitutional tort law would encourage remedial comparison. The crucial question in enforcing the Fourth Amendment is not whether the exclusionary rule works well or poorly. The question is--or at least should be--whether it works better than the available alternatives. The same is true of money damages. The costs and benefits of damages liability as a means of enforcing the Fourth Amendment cannot be assessed in isolation. The efficacy of exclusion is also relevant. Such comparisons are local, not global. The fact that exclusion of evidence provides meaningful redress for illegal search and seizure in some contexts does not mean that it applies to all, much less that it has relevance for other constitutional rights. Just as remedial opportunities vary among rights, the comparative advantage of remedial mechanisms will vary as well. The straitjacket of remedial uniformity imposed by the current law of § 1983 hinders comparative evaluation of alternative strategies. A more flexible approach to remedial choice would invite attention to that concern.
Finally, I hope that thinking of remedies in relation to specific rights would lead to better enforcement of the Constitution. If the costs and benefits of civil liability vary across rights, remedial uniformity precludes optimal enforcement. Crafting remedial strategies to redress particular kinds of constitutional violations would hold out the prospect, at least, of securing greater compliance at lower cost. Muddled thinking about the relationship between rights and remedies in constitutional law not only leads to intellectual confusion and misplaced argument; it also contributes to shortfall and sloppiness in redressing constitutional violations. A better understanding of the differential role of civil liability in enforcing various rights would not make the hard choices go away, but it would remove the conceptual blinders that prevent us from seeing those choices clearly. Disaggregating constitutional torts would be a step in the right direction.
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