Taking Supremacy Seriously: the Contrariety of Official Immunities80 Fordham L. Rev. 443 (2011)

Abstract:     
Immunity doctrines protecting state and federal officials from civil liability for constitutional violations are old news in the United States. In the last half of the twentieth century and into this century, the Supreme Court has significantly expanded such immunities, relying on the mantra that such immunities were well known at English common law and that the Framers gave no indication of rejecting them. This article examines that assertion and the place of official immunities in the constitutional structure of the United States. The article argues that such immunities were not established at common law and that, even if they had been, the text of the Constitution implies that the Framers did not intend to import them into the American constitutional system. The article observes that, with one exception, all of the official immunities the Supreme Court has recognized are federal common-law creations of the Court. It concludes that allowing official immunity doctrines to defeat claims founded on constitutional violations is incompatible with the constitutional supremacy that Article VI mandates.

Number of Pages in PDF File: 35

Keywords: official immunity, supremacy, federal common law

Accepted Paper Series