The common law origins of constitutionally compelled remedies.

• Author: Woolhandler, Ann

Federal courts scholars see the Reconstruction-era enactment of general federal question jurisdiction(1) as a decisive moment in judicial federalism. The conventional wisdom is that with the 1875 Act, Congress gave the federal courts powers that had lain dormant in the Constitution since the Judiciary Act of 1789.(2) Federal courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States."(3) The standard view is that the 1875 Act, taken together with the 1871 Civil Rights Act,(4) which provided a private right of action to restless constitutional violations by those acting under color of state law, fundamentally readjusted state and federal judicial power. The modern descendants of these two Reconstruction-era statutes -- 28 U.S.C. [sections] 1331 and 42 U.S.C. [sections] 1983 -- play a critical role in the way litigants currently raise constitutional issues. Expansive judicial interpretation of the role of federal courts to reach constitutional deprivations under these statutes was provided early in this century by the Lochner(5) Court in decisions such as Ex parte Young,(6) and later by the Warren Court in decisions such as Monroe v. Pape.(7) These decisions are themselves associated with "activist" courts, just as the 1871 Civil Rights Act and the 1875 general federal question statute are associated with "activist" Reconstruction Congresses.

Implicit in the emphasis in federal courts scholarship on federal question jurisdiction and the 1871 Civil Rights Act, as well as in their association with the more transformative eras in state-federal relations, is a belief that at other times -- when federal question jurisdiction was either nonexistent or less expansively interpreted -- a more state-respecting form of judicial federalism was in place for addressing federal constitutional claims. Indeed, the implication might seem irresistible, given that in the absence of federal causes of action and federal question jurisdiction, constitutional issues would generally come to the federal courts only by way of direct review of state court cases, or when the parties happened to be of diverse citizenship.

This Article challenges this general impression and seeks to show that much of the Supreme Court's development of independent federal rights and remedies took place without reliance on either federal question jurisdiction or statutes such as [sections] 1983, but rather under the rubric of diversity jurisdiction. Throughout the nineteenth century, both before and after Reconstruction, the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it. The modern emphasis on the development of federal question jurisdiction and [sections] 1983 can therefore be seen as a version of winners' history(8) that attributes exaggerated historical significance to legislation that is now the dominant means for raising constitutional issues. If, however, continuity exists between the earlier use of diversity and the later use of federal question jurisdiction to redress unconstitutional state action, then a more complete history should also include an account of the use of diversity, in both law and equity, as a form of federal question jurisdiction.

Although the use of diversity to develop a general commercial law under the regime of Swift v. Tyson(9) has received substantial scholarly attention,(10) its use as a vehicle for raising constitutional issues or other federal questions has received little comment.(11) The attention to private law in diversity is understandable, because federal court activism in this area might fairly be criticized as improperly encroaching on the lawmaking role of state courts and legislatures, especially in light of modern-era decisions such as Erie Railroad Co. v. Tompkins(12) that severely limited the common-lawmaking powers of the federal courts. By contrast, in deciding federal questions and constitutional issues, the federal courts were operating in an area of conceded federal competency, even when the basis of subject matter jurisdiction was diversity rather than federal question.

The presumptive propriety of federal courts' deciding federal issues, however, may have led to a modem underappreciation of the extent to which the Supreme Court saw the resolution of such issues as one of the defining purposes of diversity jurisdiction, and of the extent to which the federal diversity courts early on developed independent federal rights and remedies for constitutional violations. This role of diversity as a mechanism for the administration of independent federal rights and remedies shows that the landmarks in the study of constitutional remedies, such as the 1875 Act and Ex parte Young,(13) did not fundamentally alter the role of the federal courts so much as they gradually changed the labels under which litigants continued to do what they had done in the past. This continuity arguably reinforces the legitimacy of "activist" Supreme Courts' expanding the use of federal question jurisdiction and [sections] 1983, insofar as it reflects a historically settled consensus that the federal courts should administer a federalized set of rights and remedies for federal constitutional rights.

Part I of this Article explores the Supreme Court's use of diversity jurisdiction as a substitute for federal question jurisdiction. It shows how the Court interpreted the diversity jurisdiction broadly to accommodate cases raising federal questions and particularly constitutional issues. At various times, the Court permitted parties to avoid the strictures of diversity by expanding the categories of those who might complain of unlawful state action. The Court thus made it easier for out-of-state citizens to bring constitutional challenges through claim assignments,(14) shareholder derivative actions,(15) and other devices.(16)

Part I also explores the sources of law in cases raising constitutional issues that originated in the diversity jurisdiction of federal trial courts. It has sometimes been supposed that in diversity actions against state officers for their wrongful acts, federal courts merely interjected federal law "interstitially" into state law causes of action and thus deferred more to state law than was later the case when implied constitutional rights of action and the modern [sections] 1983 suit became available.(17) Under this traditional view, state law typically would supply the basis for a plaintiff's claim and for the officer's defense. The Federal Constitution would be relied on only to negate the officer's claim of authority under state law.(18) This Article, however, concludes that the federal diversity courts did not closely imitate state courts in providing remedial rights(19) in suits against state officials, either in actions at law or in suits in equity. Rather, these older diversity-based federal question cases more closely resembled modern implied constitutional rights of action and [sections] 1983 cases than modem federal courts scholars have supposed.

The remainder of the Article ties the history of constitutional remedies in diversity to the development of constitutional remedies more generally. While Part I shows the development of constitutional remedies in federal courts under the diversity jurisdiction, Part II shows the extent to which the Supreme Court on direct review of state court decisions forced state courts to provide remedies for constitutional harms. It concludes that federal law was indeed genuinely interstitial to state law on direct review of cases raising federal questions in state courts, as distinguished from diversity actions raising federal questions.(20) This meant that the Supreme Court ordinarily deferred to state courts when it came to the remedial framework in which federal issues would be decided. Nevertheless, in the nineteenth century, the Court occasionally forced remedies on the state courts in lawsuits that sought redress for trespasses committed by state officials acting under unconstitutional state laws. Such remedy forcing suggests that there may have existed a common law baseline of remedies against governmental officials for their illegal behavior that state law could not constitutionally abrogate.

Part III then attempts to show how the two threads of federal court constitutional litigation in diversity and compulsory state court constitutional cases -- neither of which depended on authorization from state law -- came together to form the framework of modem constitutionally compelled remedies. Part III first traces the emergence of nondiversity federal question constitutional cases in nineteenth-century Contracts Clause litigation. While it was forcing trespass remedies on state courts to redress official action taken under unconstitutional statutes (and entertaining the already well-established diversity action to redress an officer's trespass in reliance on an unconstitutional state statute), the Supreme Court also concluded that such trespass actions brought in federal court "arose under" federal law for purposes of the 1875 jurisdiction statute.

These contemporaneous events shed light on the obscure but common origins of compelled remedies in state courts, diversity actions raising constitutional issues, and federal question constitutional cases. All three were grounded in a sense that trespass actions to redress deliberate invasions by government officers were, at some level, constitutionally compelled -- whether an action was brought in state or federal court. Part III then illustrates the operation of this three-track remedial pattern for constitutional violations (mandatory trespass-based actions in state court, along with diversity and federal...