Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape
43 Pages Posted: 26 Feb 2010 Last revised: 4 Aug 2010
Date Written: February 23, 2010
The architecture of federal constitutional remedies involves a matrix of causes of action and affirmative theories of relief that facilitate protection of individual constitutional rights and the evolution of constitutional doctrine. At the same time, lawsuits by private parties to secure constitutional enforcement present a number of structural constitutional challenges that have motivated the Supreme Court to bar or substantially limit many important forms of constitutional remedies. In most cases when the Court does so, however, its decisions explicitly or implicitly leave room for alternative remedies that provide an escape hatch for the litigant whose attempt to enforce the Constitution would otherwise be foreclosed. This article argues that while the Constitution does not appear to mandate such alternative remedies, the Court has established them in a pragmatic and functional attempt to balance concerns about federalism and separation of powers against the importance of federal constitutional enforcement. It then asserts that the Court has not recognized alternative remedies in one important area of constitutional enforcement, damages actions against state and local officials under 42 U.S.C. § 1983. In the nearly 50 years since Monroe v. Pape, the Court has narrowed §1983 doctrine in ways that make damages recovery both costly and difficult. Unlike with other constitutional remedies, however, it has not offered meaningful federal alternatives for the foreclosed relief. I argue that this is the product of two unrecognized ironies. First, § 1983 damages actions are themselves supposed to act as alternatives to other potential forms of constitutional enforcement. Second, to the extent that there exists any alternative remedy to § 1983 damages, it would be in state court under state constitutional or tort law. But Monroe’s recognized federal damages actions to provide an alternative to such state remedies, so state remedies cannot be act as an adequate substitute for § 1983 actions. The article concludes by suggesting that viewing § 1983 damages as an alternative remedy in the larger constitutional remedies structure might help expand the discourse about the traditional justifications for damages.
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