Constitutional Interpretation and Remedies (Volume 10): Encyclopedia of American Law

ENCYCLOPEDIA OF AMERICAN LAW

VOLUME 10: CONSTITUTIONAL INTERPRETATION AND REMEDIES

How the Constitution Is Read and How Violations Are Redressed

Introduction to Volume 10

The Constitution does not interpret itself. Someone must read the words and decide what they mean. The Supreme Court has claimed that role for itself, but the methods of interpretation are contested. This volume covers two related subjects: the theories of constitutional interpretation, and the remedies available when constitutional rights are violated.

Part One covers constitutional interpretation: originalism, living constitutionalism, textualism, structuralism, and the role of precedent. Part Two covers the most important statutory remedy for constitutional violations: Section 1983, which allows individuals to sue state and local officials for deprivations of federal rights. Part Three covers habeas corpus, the ancient writ that allows prisoners to challenge the lawfulness of their detention. Part Four covers sovereign immunity, the doctrine that protects governments from being sued without their consent.

PART ONE: CONSTITUTIONAL INTERPRETATION

Chapter 1: Who Interprets the Constitution?

The question is older than the Constitution itself. In Marbury v. Madison (1803) , Chief Justice Marshall claimed for the Supreme Court the power to declare laws unconstitutional. The logic: the Constitution is law; courts interpret law; when a statute conflicts with the Constitution, the Constitution governs. Judicial review was established.

But the Court is not the only interpreter. Congress interprets the Constitution when it passes laws. The President interprets it when he vetoes legislation or issues executive orders. State courts interpret it when they decide federal questions. And the people interpret it when they vote, protest, or amend the Constitution.

The political branches are not bound by Supreme Court precedent in the same way that lower courts are. Congress may pass a law that the Court has struck down, hoping the Court will change its mind. The President may refuse to enforce a Court decision (though that is rare and controversial). But for practical purposes, the Court’s word is final.

Chapter 2: Originalism

Originalism is the theory that the Constitution should be interpreted according to its original meaning at the time it was ratified. The theory has several versions.

Original intent asks: what did the framers intend? This version fell out of favor because intent is difficult to discern. The framers were fifty‑five men in Philadelphia. They disagreed with each other. What counts as “the” intent?

Original public meaning asks: what would a reasonable person at the time of ratification have understood the words to mean? This is the dominant form of originalism today. Justice Scalia was its most famous advocate.

Original methods originalism asks: what were the rules of interpretation that the framers would have applied to the text? This version tries to recover not just the meaning but the interpretive rules.

Originalists argue that the Constitution is law, and law has fixed meaning. If the meaning changed with every generation, the Constitution would be no constraint at all. The way to change the Constitution is through amendment, not interpretation.

The strongest evidence for original meaning includes: the text itself, the drafting history (the records of the Constitutional Convention and the state ratifying conventions), contemporaneous dictionaries, and early constitutional practice.

District of Columbia v. Heller (2008) is a famous originalist decision. Justice Scalia’s majority opinion traced the original meaning of the Second Amendment. The Court held that the amendment protects an individual right to possess a firearm for self‑defense in the home.

Originalism is not mechanical. The originalist Justice Scalia sometimes found the original meaning ambiguous. In those cases, he looked to tradition and precedent.

Chapter 3: Living Constitutionalism

Living constitutionalism is the theory that the Constitution should be interpreted in light of contemporary values and conditions. The framers knew they could not foresee the future. They used broad language—”due process,” “equal protection,” “unreasonable searches and seizures”—to allow future generations to apply the Constitution to new circumstances.

Justice Brennan was the leading advocate of living constitutionalism. He wrote: “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Living constitutionalists point to cases like Brown v. Board of Education (1954). The original meaning of the Fourteenth Amendment is contested, but many originalists argue that it did not forbid school segregation. Living constitutionalists argue that Brown was right even if it was not originalist.

Living constitutionalism is not a license for judges to impose their own values. The constraint is that judges must be able to justify their decisions as plausible readings of the constitutional text, even if not the only possible reading.

Chapter 4: Textualism

Textualism is the theory that the statutory or constitutional text is the only legitimate source of meaning. Legislative history (committee reports, floor statements, the drafting history) is irrelevant. If the text is clear, that ends the inquiry. If the text is ambiguous, the court should look to canons of construction (e.g., the rule of lenity in criminal cases).

Justice Scalia was the leading textualist on the Supreme Court. He wrote: “The text is the law, and it is the only law. There is no ‘intent’ of the Congress apart from the text.”

Textualism in constitutional interpretation is closely related to originalism. Both focus on the text. The difference is that originalism asks what the text meant to the ratifiers, while textualism asks what the text would mean to a reasonable reader today. In practice, the two often converge.

Chapter 5: Structuralism

Structuralism interprets the Constitution by inference from its overall structure. The constitution creates a federal government of limited and enumerated powers. That structure implies that the federal government may not expand its powers beyond those enumerated. It also implies that the states retain substantial authority.

Justice Black relied on structural arguments to interpret the Fourteenth Amendment. He argued that the amendment incorporated the entire Bill of Rights against the states. The structure of the amendment—its broad language—supported that reading.

Structural arguments also appear in federalism cases. The Constitution creates two levels of government. That structure implies that the federal government may not commandeer state legislatures or executives.

Chapter 6: Precedent (Stare Decisis)

Stare decisis is the doctrine that courts should follow prior decisions. The term means “to stand by things decided.”

The Supreme Court follows its own precedents as a matter of practice, not constitutional command. The Court may overrule a prior decision. But it does so only when the precedent is unworkable, when the reasoning has been eroded by later decisions, or when the precedent was wrongly decided and the error is egregious.

In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) , the Court reaffirmed the core holding of Roe v. Wade (1973) on stare decisis grounds even though a majority of the Justices might have decided the case differently if writing on a blank slate. The opinion said: “A decision to overrule Roe would be perceived as a surrender to political pressure. The Court’s legitimacy depends on the perception that its decisions are principled, not political.”

The Court overruled Roe in Dobbs v. Jackson Women’s Health Organization (2022) , holding that the reasoning of Roe was egregiously wrong and that the precedent had proved unworkable.

The weight of precedent depends on several factors: the age of the precedent, the reliance interests it has created, the quality of its reasoning, and the degree of controversy.

PART TWO: SECTION 1983

Chapter 7: The Text and History

Section 1983 was enacted as part of the Civil Rights Act of 1871. It was the “Ku Klux Klan Act,” designed to give victims of Klan violence a federal remedy when state courts were unwilling to protect them.

The statute reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

After Reconstruction, the statute fell into disuse. The Supreme Court revived it in Monroe v. Pape (1961) . The case involved a warrantless entry by Chicago police. The plaintiffs sued under Section 1983. The city argued that the statute applied only to laws, not to lawless conduct by officers. The Court rejected that argument. Section 1983 was intended to provide a remedy for any deprivation of federal rights under color of state law, including violations of the Fourth Amendment.

Chapter 8: Under Color of State Law

Section 1983 applies only to conduct taken “under color of state law.” That includes any conduct that is authorized by state law or that is committed by an official acting in his official capacity. It also includes conduct that is not authorized by law but is done in the guise of official authority.

A police officer who beats a suspect while on duty is acting under color of state law, even if the department forbids excessive force. A state employee who steals property from a citizen is not acting under color of state law if the theft is entirely personal and has no connection to his official duties.

Private conduct is not covered by Section 1983 unless the private actor is acting as a state actor. The state actor doctrine is complex. A private person acts under color of state law if he conspires with state officials, if he performs a function that is traditionally and exclusively performed by the state, or if the state has delegated its authority to him.

Chapter 9: Persons and Governments

Section 1983 reaches “every person.” That includes individuals, corporations, and municipalities. It does not include states or state agencies. A state is not a “person” for purposes of Section 1983. That is the rule from Will v. Michigan Department of State Police (1989) .

State officials sued in their official capacities are treated as the state itself. They are not persons for damages claims, but they are persons for injunctive relief. Ex parte Young (1908) allows suits against state officials to enjoin ongoing violations of federal law.

Municipalities are persons. They may be sued under Section 1983. But a municipality is not vicariously liable for the acts of its employees. Monell v. Department of Social Services of the City of New York (1978) . The plaintiff must show that the violation was caused by a municipal policy, custom, or practice.

Chapter 10: Rights Secured by the Constitution and Laws

Section 1983 reaches violations of “rights, privileges, or immunities secured by the Constitution and laws.” The full range of constitutional rights is covered: First Amendment, Fourth Amendment, Due Process, Equal Protection, Eighth Amendment, etc.

The statute also reaches violations of federal statutes. If a federal law creates a private right of action, the plaintiff may sue under that law directly. Section 1983 provides an alternative vehicle. In Maine v. Thiboutot (1980) , the Court held that Section 1983 reaches violations of federal statutes as well as the Constitution.

Not every statutory violation gives rise to a Section 1983 claim. If the statute itself contains a comprehensive enforcement scheme that leaves no room for Section 1983, the Court will infer that Congress intended to preclude Section 1983 claims.

Chapter 11: Qualified Immunity

Even if a state official violates a plaintiff’s constitutional rights, the official may be immune from suit. Qualified immunity protects government officials from liability unless they violated a “clearly established” statutory or constitutional right.

The test: (1) Did the official violate a constitutional right? (2) Was that right clearly established at the time of the violation? A right is clearly established if a reasonable official would have known that his conduct was unlawful. The plaintiff does not need to cite a case directly on point, but existing precedent must have placed the constitutional question beyond debate.

Qualified immunity has been criticized for making it too difficult for plaintiffs to recover. The Court has defended it as necessary to protect officials from the threat of litigation and to allow them to make difficult decisions in the moment.

Harlow v. Fitzgerald (1982) established the modern test. The Court held that officials are immune unless the right was clearly established. The purpose is to balance the need to vindicate constitutional rights with the need to protect officials who act in good faith.

The Court has rejected attempts to abolish qualified immunity. The defense is available to all government officials except prosecutors (who have absolute immunity) and judges (who have absolute immunity for judicial acts).

Chapter 12: Absolute Immunity

Some officials have absolute immunity from Section 1983 suits. They cannot be sued at all, no matter how egregious their conduct, for acts within the scope of their authority.

Prosecutors have absolute immunity for acts “intimately associated with the judicial phase of the criminal process.” That includes deciding whether to prosecute, presenting evidence to a grand jury, and arguing at trial. Prosecutors do not have immunity for investigative acts (questioning witnesses, directing police) or for acts that are purely administrative.

Judges have absolute immunity for acts in their judicial capacity. The immunity extends even to judges who act in error or with malice. The only exceptions: acts that are not judicial (arresting a person outside the courtroom) and acts done in the complete absence of jurisdiction.

Legislators have absolute immunity for legislative acts. The immunity derives from the Speech or Debate Clause of the Constitution, not from Section 1983.

Witnesses have absolute immunity for testimony given in court. The rule applies even to witnesses who perjure themselves, though they may be prosecuted for perjury.

Chapter 13: Remedies – Damages and Injunctions

Section 1983 authorizes two types of relief: legal (damages) and equitable (injunctions).

Damages are available for past violations. The plaintiff must prove actual injury. Compensatory damages are for the loss suffered. Nominal damages (a small sum) are available if the plaintiff proves a violation but cannot prove actual injury. Punitive damages are available if the official acted with malicious or reckless disregard for the plaintiff’s rights.

Injunctive relief is available to stop ongoing violations. The plaintiff must show a real and immediate threat of future injury. Past harm alone is not enough. The federal courts have broad equity powers to issue preliminary injunctions, permanent injunctions, and declaratory judgments.

Attorney fees are available to prevailing plaintiffs under 42 U.S.C. § 1988. The fee award is mandatory, not discretionary. The purpose is to encourage private enforcement of civil rights.

PART THREE: HABEAS CORPUS

Chapter 14: The Great Writ

Habeas corpus is the ancient writ that allows a prisoner to challenge the lawfulness of his detention. The phrase means “you have the body.” The writ commands the custodian to bring the prisoner before a judge and explain why he is being held.

The Suspension Clause of the Constitution (Article I, Section 9) provides: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Habeas corpus is available in federal court to state prisoners and federal prisoners. The scope of review differs.

Chapter 15: State Prisoners

Federal habeas corpus for state prisoners is governed by 28 U.S.C. § 2254. The statute was substantially amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.

State prisoners must exhaust their state remedies before filing a federal habeas petition. The prisoner must have given the state courts a fair opportunity to address his claims. He cannot raise a claim for the first time in federal court.

The statute of limitations is one year. The one‑year clock begins to run when the state conviction becomes final.

The scope of review is narrow. Under AEDPA, a federal court may grant habeas relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The state court’s factual findings are presumed correct. The petitioner must rebut that presumption with clear and convincing evidence.

Chapter 16: Federal Prisoners

Federal prisoners may file habeas petitions under 28 U.S.C. § 2255. The petitioner must challenge the legality of his sentence, not merely the conditions of confinement. The motion is filed in the district court where the prisoner was convicted.

Section 2255 petitioners must show that the sentence was imposed in violation of the Constitution or federal law, that the court lacked jurisdiction, that the sentence exceeds the maximum authorized, or that the sentence is otherwise subject to collateral attack.

The limitations period is also one year.

Chapter 17: Guantanamo and the Suspension Clause

The Bush administration detained suspected enemy combatants at the Guantanamo Bay naval base. The detainees filed habeas petitions. The government argued that federal courts had no jurisdiction because Guantanamo Bay is not in the United States.

In Rasul v. Bush (2004) , the Court held that the federal habeas statute applied to Guantanamo. Congress responded by passing the Detainee Treatment Act of 2005, which stripped federal courts of jurisdiction over habeas petitions by Guantanamo detainees.

In Hamdan v. Rumsfeld (2006) , the Court held that the military commissions established to try detainees violated the Uniform Code of Military Justice and the Geneva Conventions. Congress responded by passing the Military Commissions Act of 2006, which again stripped habeas jurisdiction.

In Boumediene v. Bush (2008) , the Court held that the Suspension Clause applies to Guantanamo. The detainees had a constitutional right to habeas corpus. The Military Commissions Act’s attempt to strip jurisdiction was unconstitutional.

PART FOUR: SOVEREIGN IMMUNITY

Chapter 18: The Doctrine

Sovereign immunity is the principle that the government cannot be sued without its consent. The doctrine has roots in English common law: the king could do no wrong.

The United States has waived its immunity in some circumstances. The Federal Tort Claims Act (FTCA) allows suits for negligence by federal employees. The Tucker Act allows suits for breach of contract. But these waivers are limited. The government may also waive immunity by statute.

The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The Supreme Court has read the Eleventh Amendment to bar suits against a state by its own citizens as well. Hans v. Louisiana (1890) .

Chapter 19: Exceptions

There are several exceptions to sovereign immunity.

Suits against state officials (Ex parte Young) . In Ex parte Young (1908) , the Court held that a state official may be sued in his official capacity for prospective injunctive relief. The fiction: the state official who violates federal law acts without the authority of the state. He is stripped of his official character.

Suits for declaratory judgment are also permitted under the same theory.

Suits for money damages are barred unless the state has consented. A state may waive its immunity by statute. Many states have waived immunity in their own courts. Few have waived immunity in federal court.

Congress may abrogate state sovereign immunity when it acts under Section 5 of the Fourteenth Amendment. In Fitzpatrick v. Bitzer (1976) , the Court held that Congress may authorize suits against states for violations of the Fourteenth Amendment. The Fourteenth Amendment was adopted after the Eleventh Amendment and limits state sovereignty.

Chapter 20: Federal Sovereign Immunity

The federal government has sovereign immunity as well. The doctrine applies to suits for money damages. It does not apply to suits for injunctive relief against federal officials (the Young doctrine applies to federal officials as well).

The Federal Tort Claims Act (FTCA) waives sovereign immunity for negligence claims arising from the acts of federal employees. The FTCA does not waive immunity for constitutional torts, for intentional torts (except for law enforcement officers), or for claims arising in foreign countries.

The Tucker Act waives sovereign immunity for breach of contract claims. The government may be sued for money damages in the Court of Federal Claims.

The Administrative Procedure Act waives sovereign immunity for suits seeking relief other than money damages. The APA allows suits against federal agencies to challenge agency action.

APPENDIX 1: GLOSSARY

Abrogation – Congress’s power to override state sovereign immunity when acting under Section 5 of the Fourteenth Amendment.

AEDPA – Antiterrorism and Effective Death Penalty Act of 1996. Narrowed federal habeas review for state prisoners.

Bivens action – A damages suit against federal officials for constitutional violations. Derived from Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). Similar to Section 1983 but for federal actors.

Clearly established right – The standard for qualified immunity. A reasonable official would have known that his conduct was unlawful.

Eleventh Amendment – The constitutional provision that bars suits against states by private parties.

Exhaustion – The requirement that state prisoners must give state courts an opportunity to address their claims before filing a federal habeas petition.

Ex parte Young – The doctrine that permits suits against state officials for prospective injunctive relief.

Federal Tort Claims Act (FTCA) – The statute waiving federal sovereign immunity for negligence claims.

Habeas corpus – The writ that allows prisoners to challenge the lawfulness of their detention.

Living constitutionalism – The theory that the Constitution should be interpreted in light of contemporary values and conditions.

Originalism – The theory that the Constitution should be interpreted according to its original meaning.

Qualified immunity – The defense that protects government officials from liability unless they violated a clearly established right.

Section 1983 – The statute that allows individuals to sue state and local officials for violations of federal rights.

Sovereign immunity – The principle that the government cannot be sued without its consent.

Suspension Clause – Article I, Section 9, which limits Congress’s power to suspend the writ of habeas corpus.

APPENDIX 2: SELECT BIBLIOGRAPHY

Amar, Akhil Reed. The Constitution and Criminal Procedure: First Principles. Yale University Press, 1997.

Baude, William. “Originalism and the Fourteenth Amendment.” Yale Law Journal 125 (2016): 1586.

Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. Knopf, 2005.

Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 7th ed. Wolters Kluwer, 2023 (Chapter 1 – Interpretation; Chapter 11 – Sovereign Immunity; Chapter 13 – Section 1983; Chapter 14 – Habeas Corpus).

Fallon, Richard H., Jr. “The Core of an Unconstitutional Condition.” Harvard Law Review 118 (2005): 2128.

Friedman, Barry. “The History of the Countermajoritarian Difficulty.” University of Pennsylvania Law Review 141 (1993): 111.

Lasson, Kenneth B. The History and Development of the Writ of Habeas Corpus. William S. Hein, 1998.

Meltzer, Daniel J. “Habeas Corpus, Suspension, and Guantanamo.” University of Chicago Legal Forum 2008 (2008): 1.

Nabers, Timothy S. “The Ex Parte Young Doctrine and the Federalism of the Eleventh Amendment.” Texas Law Review 89 (2011): 1431.

Scalia, Antonin. “Originalism: The Lesser Evil.” University of Cincinnati Law Review 57 (1989): 849.

Schwinn, Steven D. “The Eleventh Amendment and the Future of Federalism.” Boston University Law Review 92 (2012): 1593.

Scobey, David. “The Original Understanding of the Eleventh Amendment.” Stanford Law Review 53 (2001): 1315.

Steiker, Carol S. “Habeas Corpus and the New Federalism.” Columbia Law Review 100 (2000): 1379.

Sunstein, Cass R. One Case at a Time: Judicial Minimalism on the Supreme Court. Harvard University Press, 1999.

Tushnet, Mark. “The Supreme Court and the Constitution: A History of the Interpretation of the Constitution.” Georgetown Law Journal 101 (2013): 1.

Whittington, Keith E. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. University Press of Kansas, 1999.