America's federal constitutional rights need a major fix
There is an inequity in the enforcement of individual federal constitutional rights in the United States that should be rectified.
If a person's constitutional rights are violated by local or state government actors, a federal statute, 42 U.S.C. 1983, allows them to sue to recover damages for the harm suffered. However, there is no analogous federal statute providing damages against federal actors who violate their constitutional rights.
The United States Supreme Court has made clear in a series of decisions that, absent such a statute, there is no recourse to recover damages against federal actors, no matter how serious the violation of federal constitutional rights.
The inequity created is stark: People whose federal constitutional rights are violated by government actors have much more robust judicial remedies against local and state government actors than they have against federal government actors.
This inequity is rooted in the federal government's efforts to address the adverse legal effects of slavery during the Reconstruction period.
Within six years after the Civil War ended in 1865, three important amendments to the United States Constitution were ratified to: abolish slavery — (13th Amendment) — guarantee the formerly enslaved persons both due process and equal protection of the laws — 14th Amendment — and provide the right to vote to formerly enslaved males — 15th Amendment.
In 1871, 42 U.S.C. 1983 was also enacted, creating a claim in court allowing a person whose federal constitutional rights are violated by state or local government actors to sue them for damages.
This new federal statute was focused on local and state government actors who violate federal constitutional rights, rather than federal government actors, because it was state and local governments who had previously enforced slavery in the South, and who were still violating the newly established constitutional rights of the formerly enslaved persons.
In the Reconstruction period, the former Confederate states and their local governments resisted legal equality for the newly freed persons, while the federal government was considered to be the creator and enforcer of the new constitutional rights for these same persons.
After the Reconstruction Period, we have learned that federal governmental actors can and do violate the federal constitutional rights of Americans.
For example, it is now well known that J. Edgar Hoover's Federal Bureau of Investigation violated the federal constitutional rights of some Americans in exercising its law enforcement functions, including its efforts to disrupt the civil rights advocacy of Dr. Martin Luther King, Jr.
In the current period, President Donald Trump's executive orders and policies have generated an unprecedented volume of litigation asserting that federal actors have violated the federal constitutional rights of many Americans.
Current and former federal employees, immigrants who are lawful residents of the country, universities and their students and lawyers and their law firms are asserting in American courts that their federal constitutional rights have been violated by the enforcement of these presidential orders and policies.
However, even if such violations are proven, the courts cannot award damages (with a few limited exceptions) against the federal government actors who commit them.
Simple justice demands that any person whose constitutional rights are violated by government actors should be able to recover damages for the harm they suffer, regardless of whether the government actors are federal, local or state. Individual constitutional rights are diminished if violations of them cannot be fully vindicated in American courts.
The solution to the current inequity is straightforward. A federal law should be enacted or 42 U.S.C. 1983 should be amended to create a right for every person whose federal constitutional rights are violated by federal actors to recover damages for the harm that they suffer.
If this addition to federal law were enacted, then all Americans whose federal constitutional rights are violated by government actors would have the same judicial remedies available to them to vindicate the violation of these important rights.
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