AuthorOldham, Andrew S.


It is unclear to me that originalists' qualified immunity debate is framed in the correct terms. Or that it is framed in the correct time period. The current debate turns on whether officers enjoyed common-law tort immunities in 1871, when Congress passed the Enforcement Act that today appears in 42 U.S.C. [section] 1983. (1) But the constitutional claims underlying qualified immunity cases often come from the Bill of Rights--not Reconstruction. (2) So the originalist inquiry should focus (at least in the first instance) on whether officers enjoyed constitutional immunities in 1791. And the historical pleading practices embraced in English common law and by our first Congresses suggest the answer is "yes." (3)

This Article challenges the premises of the current debate by considering the archetypal qualified immunity case: a Fourth Amendment plaintiff's claim against an officer who allegedly executed an "unreasonable" search or seizure. In 1791, the word "unreasonable" meant "against the reason of the common law." (4) That common law brought with it a host of immunities for officers charged with searching and seizing. (5) Thus, it is possible that a Fourth Amendment claim at the Founding required plaintiffs to show that an officer's search or seizure was not only wrongful, but so wrongful that the plaintiff could overcome the officer's common-law immunities. If that is correct, then today's originalist critics of qualified immunity must broaden their focus and shift their debate in both time (from 1871 to 1791) and focus (from torts to the Constitution).


    Qualified immunity is a hot topic. It is the rare legal doctrine that has captured the attention of mainstream news and everyday Americans. (6) It has stimulated debates and prompted Congress to consider whether to amend [section] 1983 (7)--the material provisions of which have remained unaltered since its enactment in 1871. Qualified immunity generates a ton of federal court litigation (8) and has created a serious divide amongst courts and legal scholars. (9)

    The part of the present debate that I find most interesting is whether originalists must abjure qualified immunity. Some-Professor William Baude chief among them-have argued yes. (10) Others--most recently Scott Keller-have argued no. (11) The fault line between them is whether some form of immunity had some form of common-law provenance in 1871. (12) If so, Congress might have silently enacted that immunity when expressly making state officials liable for deprivations of constitutional rights under [section] 1983. (13)

    But this focus on 1871 obscures the way that [section] 1983 interacts with the underlying constitutional rights it protects. Take the archetypal [section] 1983 case: A suspect sues a police officer for using excessive force during his arrest. The suspect--let's call him Adam--files suit under [section] 1983 against the arresting officer--let's call her Amanda. Section 1983 gives Adam a cause of action for money damages against Amanda when she:

    under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects [Adam], or causes [Adam] to be subjected, ... to the deprivation of any rights, privileges, or immunities secured by the Constitution. (14) What is the right, privilege, or immunity secured by the Constitution of which Amanda allegedly deprived Adam? It is the right against "unreasonable ... seizures" protected by the Fourth Amendment. (15)

    But in the current qualified immunity debate, the Federal Constitution (specifically, the Fourth Amendment) and its original public meaning (in 1791) are irrelevant. The debate instead centers on state law (namely, torts) at some point between the present day and 1871, the year of [section] 1983's enactment. The Supreme Court's canonical qualified immunity decision, Pierson v. Ray, (16) looked to Mississippi tort law for the source of that immunity. (17) Professor Baude likewise frames his argument around "constitutional torts" and argues that Pierson misread state law. (18) Scott Keller's impressive historical analysis starts from the same premise--namely, that immunity doctrine relates closely to tort law--and disputes Professor Baude's interpretation of the nineteenth-century common law. (19) And similarly, some judges construe the Fourth Amendment as a judicial license to promulgate an ever-evolving and ever-expanding corpus of federal tort law that is not rooted in anything beyond other twenty-first century qualified immunity cases. (20)

    On the one hand, this makes some sense. After all, Amanda committed a tort in the sense that she allegedly battered (or falsely arrested) Adam, and that tort became unconstitutional because Amanda did so under color of state law. Moreover, as Professor Baude points out, early cases adjudicating the scope of Fourth Amendment rights arose in the context of state law tort suits. (21) For example, Adam would sue under state law for battery or false arrest; Amanda would then defend by invoking her power to arrest with or without a warrant; and hence the meaning of Adam's Fourth Amendment rights against Amanda would be liquidated in the context of a state law tort dispute.

    On the other hand, this fixation on state law obscures an important point. As Chief Justice Marshall famously put it, "we must never forget, that it is a constitution we are expounding." (22) And it seems to me that a central question in Adam v. Amanda--as in Pierson v. Ray--is whether the original public understanding of the Fourth Amendment included some form of immunity for the arresting officer. There is at least some evidence that it did.


    Before considering the original public meaning of the Fourth Amendment and whatever immunities it did or did not include in 1791, I put forward two introductory propositions that I hope will be relatively uncontroversial.

    The first is that English common law matters to the originalist enterprise. (23) The American public obviously understood the common law at the Founding--which is why some provisions of the Constitution are lifted directly from the law of our mother country. (24) That is also why, in cases too numerous to count or cite, the Supreme Court interprets the Constitution generally, and our Bill of Rights specifically, against the backdrop of English common law. (25) And that is why the Supreme Court so often invokes William Blackstone, whose Commentaries were widely read and "accepted [by the public at the Founding] as the most satisfactory exposition of the common law of England." (26)

    My second (hopefully uncontroversial) introductory proposition is that the practices of the first Congresses matter. Those Congresses were obviously closer in time to the Founding. The first Congresses understood the original public meaning of the Constitution because they represented members of the relevant original public. And they were tasked with filling the great many holes left by the Constitution to democratic interpretation and implementation. As Professor David Currie put it in his masterwork, The Constitution in Congress, "the Constitution, as Chief Justice Marshall would later remind us, laid down only the 'great outlines' of the governmental structure." (27) The Framers left the details to Congress, which they thought was better situated to "translate] the generalities of this noble instrument into concrete and functioning institutions." (28) Congress's task "was one partly of interpretation and partly of interstitial creation." (29) In this way, "the First Congress was a sort of continuing constitutional convention, and not simply because ... many of its members ... helped to compose or to ratify the Constitution." (30)

    The first Congresses' active role in translating, interpreting, and creating the Constitution is why the Court so often turns to the first Congresses to understand the Constitution's meaning, again in cases too numerous to count or cite. When it comes to interpreting Article III, no early statute is more influential than the Judiciary Act of 1789. (31) As noted by the greatest legal treatise of our time, "the first Judiciary Act is widely viewed as an indicator of the original understanding of Article III and, in particular, of Congress' constitutional obligations concerning the vesting of federal jurisdiction." (32) But the Court's reliance on early congressional practice is by no means limited to the First Judiciary Act. Other examples abound. (33)

    Most importantly for present purposes, the Court has repeatedly used both of these originalist sources--English common law and early congressional practice--to understand the Fourth Amendment. (34) That makes sense because the Amendment prohibits "unreasonable searches and seizures." (35) And in 1791, "'unreasonable' conveyed a particular meaning: namely, against reason, or against the reason of the common law." (36) As Professor Laura Donohue explains: "That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal. General warrants, being against the reason of the common law, were thus unlawful, or void." (37) This understanding of the word "unreasonable" was shared by John Locke, William Blackstone, the Founders, and the public more generally. (38)


    With these principles in place, we can now consider official immunity at common law in England. As explained below, officer immunities were robust. (39) But to fully understand the content and operation of those immunities, it is first necessary to know something about common-law pleading. so that is where I begin, with Joseph Chitty's authoritative Treatise on Pleading as a guide. (40)

    Plaintiffs at common law filed a "declaration" much like today's complaint. (41) Defendants could then file a "plea in bar" explaining why the...

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