Constitutional Remedies

• Author: Theodore Eisenberg
• Pages: 651-653

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Constitutional remedies take different forms, including defenses to criminal prosecutions, postconviction HABEAS CORPUS actions, civil actions for DAMAGES, and declaratory and injunctive relief. Remedies for violations of constitutional rights, at first indistinguishable from more general legal remedies, became the focus of special congressional concern after the CIVIL WAR and are now a highly developed set of modern rules shaped by both Congress and the Supreme Court.

Until well into the twentieth century, misbehavior by state or federal officials was more likely to be viewed as

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tortious or otherwise merely unlawful rather than as unconstitutional. As in MARBURY V. MADISON (1803) and DRED SCOTT V. SANDFORD (1857), federal courts would refuse to enforce unconstitutional legislation, but the question of additional remedies for constitutional violations rarely arose. CRIMINAL PROCEDURE had not yet been federalized, and there were few constitutional rights that could give rise to distinctive remedies. Thus, early remedies against official misbehavior, such as the effort to vest jurisdiction in the Supreme Court to issue writs of MANDAMUS, invalidated in Marbury, were not thought of as distinct constitutional remedies. Even today, the liability for damages of the United States (but not United States officials) is governed largely by the FEDERAL TORT CLAIMS ACT, which does not by its terms distinguish between constitutional violations and other tortious conduct. It authorizes an action against the United States only if the challenged behavior also happens to violate state law. The conflating of constitutional violations and other legal wrongs limited and obscured constitutional remedies.

The Civil War led to the creation of new constitutional rights, and RECONSTRUCTION era CIVIL RIGHTS statutes demonstrated a new congressional belief in the need to give such rights special protection. Section 4 of the CIVIL RIGHTS ACT OF 1866, "with a view to affording reasonable protection to all persons in their constitutional rights of equality before the law," increased the number of federal judicial officers authorized to enforce the statutory protections of the act. The HABEAS CORPUS ACT OF 1867 established federal habeas corpus relief as a remedy in all cases "where any person may be restrained of his or her liberty in violation of the constitution," a provision that survives with little substantive change today. The Enforcement Act (the Civil Rights Act of 1870) imposed criminal penalties for the violation of constitutionally protected voting rights and for conspiracies to violate constitutional rights. The Ku Klux Klan Act (the Civil Rights Act of 1871)?part of which is now SECTION 1983, TITLE 42, U. S. CODE?created a civil action for every person deprived, under color of state law, of constitutional rights. Similar criminal...