Opinion - America's federal constitutional rights need a major fix
There is an inequity in the enforcement of individual federal constitutional rights in the U.S. 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 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 resulting inequity 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 U.S. Constitution were ratified — to abolish slavery (13th Amendment), to guarantee formerly enslaved persons both due process and equal protection of the laws (14th Amendment) and to provide the right to vote to formerly enslaved men (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 such a 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.
Henry Rose is the Curt and Linda Rodin Professor of Law and Social Justice at Loyola University Chicago School of Law.
Copyright 2025 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Vox
17 minutes ago
- Vox
The Supreme Court's blessedly narrow decision about religion in the workplace, explained
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court. In 2018, shortly before Justice Brett Kavanaugh's confirmation shifted the Supreme Court drastically to the right, Democratic Justice Elena Kagan laid out her strategy to keep her Court from becoming too ideological or too partisan. The secret, she said, is to take 'big questions and make them small.' Since then, Kagan and her Democratic colleagues have had mixed success persuading their colleagues to decide cases narrowly when they could hand right-wing litigants a sweeping victory. The Court has largely transformed its approach to religion, for example, though it does occasionally hand down religion cases that end less with a bang than with a whimper. SCOTUS, Explained Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser. Email (required) Sign Up By submitting your email, you agree to our Terms and Privacy Notice . This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Catholic Charities v. Wisconsin Labor and Industry Review Commission will likely be remembered as such a whimper. The opinion is unanimous, and it is authored by Justice Sonia Sotomayor, one of Kagan's few fellow Democratic justices. The case could have ended in a sweeping decision that severely undermined the rights of many workers. Instead, Sotomayor's opinion focuses on a very narrow distinction between how Wisconsin law treats some religious groups as compared to others. Catholic Charities involved a Wisconsin law that exempts some nonprofits from paying unemployment taxes. This exemption applies only to employers that operate 'primarily for religious purposes.' Wisconsin's state supreme court determined that a 'religious purpose' includes activities like holding worship services or providing religious education, but it does not include secular services like feeding the poor, even if those secular activities are motivated by religion. Related The Supreme Court is leading a Christian conservative revolution The upshot is that Catholic Charities — an organization that is run by the Catholic Church but focuses primarily on secular charitable work — was not exempt from paying unemployment taxes. Sotomayor's decision reverses the state supreme court, so Catholic Charities will now receive an exemption. The Court largely avoids a fight over when businesses with a religious identity can ignore the law In a previous era, the Court was very cautious about permitting religious organizations to claim exemptions, in part because doing so would give some businesses 'an advantage over their competitors.' Such exemptions could also potentially permit employers with a religious identity to exploit their workers. In Tony and Susan Alamo Foundation v. Secretary of Labor (1985), for example, the Court considered a religious cult that operated a wide range of commercial businesses. These businesses paid no cash salaries or wages, although they did claim to give workers food, clothing, and shelter. The cult sought an exemption from minimum wage laws and similar workplace protections, but the Court disagreed. A too-broad decision in Catholic Charities could have potentially undermined decisions like Alamo Foundation, by giving some employers a broad right to ignore laws protecting their workers. But Sotomayor's opinion reads like it was crafted to hand Catholic Charities the narrowest possible victory. Under the state supreme court's decision in Catholic Charities, Sotomayor writes, a church-run nonprofit that does entirely secular charity work may not receive an exemption from paying unemployment taxes. But a virtually identical nonprofit that does the exact same work but also engages in 'proselytization' or limits its services to members of the same faith would receive an exemption. This distinction, Sotomayor says, violates the Supreme Court's long-standing rule that the government 'may not 'officially prefe[r]' one religious denomination over another.' The state may potentially require all charities to pay unemployment taxes. But it cannot treat religious charities that seek to convert people, or that limit their services to members of one faith, differently from religious charities that do not do this. In Sotomayor's words, an organization's 'eligibility for the exemption ultimately turns on inherently religious choices (namely, whether to proselytize or serve only co-religionists).' The crux of Sotomayor's opinion is that the decision whether to try to convert people, or whether to serve non-Catholics, is an inherently 'theological' choice. And states cannot treat different religious organizations differently because of their theological choices. Unfortunately, Sotomayor's opinion, which is a brief 15 pages, does not really define the term 'theological.' So it is likely that future courts will have to wrestle with whether other laws that treat some organizations differently do so because of theological differences or for some other reason. It's not hard to imagine a cult like the one in Alamo Foundation claiming that it has a theological objection to paying the minimum wage. But the Catholic Charities opinion also does not explicitly undermine decisions like Alamo Foundation. Nor does it embrace a more sweeping approach proposed by dissenting justices in the Wisconsin Supreme Court, who argued that nonprofits whose 'motivations are religious' may claim an exemption — regardless of what that nonprofit actually does.
Yahoo
24 minutes ago
- Yahoo
Supreme Court sides with woman who says she suffered job discrimination for being straight
The Supreme Court on Thursday revived a lawsuit by an Ohio woman who said her bosses discriminated against her for being straight. The court unanimously ruled that members of majority groups do not face a higher legal standard than minorities to prevail in so-called reverse discrimination lawsuits under Title VII, the federal civil rights law that bars employment discrimination on the basis of race, sex and other protected characteristics. The decision, written by Justice Ketanji Brown Jackson, a Joe Biden appointee, comes as President Donald Trump has sought to deploy the nation's civil rights laws and agencies to combat what he sees as discrimination against white people and other majority groups. The ruling could make it easier for men and white people to successfully sue their employers for job discrimination. Lower courts had thrown out the lawsuit by Marlean Ames, who alleged that she was passed over for an Ohio state government job and then demoted from her existing post in favor of LGBTQ+ candidates. The lower courts said that members of majority groups suing for discrimination had to show 'background circumstances' suggesting that their bosses were among the 'rare' group of employers who were biased against the majority. Minorities suing for discrimination were not required to show analogous 'background circumstances' about their employers under the legal test that the 6th Circuit Court of Appeals had adopted. Jackson wrote that the 6th Circuit's requirement 'cannot be squared' with federal civil rights law or other judicial precedent. 'Congress left no room for courts to impose special requirements on majority-group plaintiffs alone,' the opinion states. The decision was an unsparing rebuke of the 'background circumstances' test and Ohio's legal arguments, stating at one point that the state's defense 'misses the mark by a mile.' Thursday's decision was unsurprising, given that the justices were highly skeptical of the state's position during oral arguments in February. Jackson's opinion did not explicitly discuss the implications for cases filed by white people. But Justice Clarence Thomas, a George H.W. Bush appointee, wrote a concurring opinion in which he said that racial discrimination lawsuits brought by white people should not face a higher legal bar than those brought by minorities. Writing that he was 'pleased' with the court's ruling, he argued that the murkiness of racial classifications can make it difficult to determine whether someone is part of the majority. 'Even if courts could identify all the relevant racial groups and their boundaries, courts would still struggle to determine which racial groups make up a majority,' Thomas wrote, in an opinion joined by Justice Neil Gorsuch. The Supreme Court's decision Thursday vacated the appeals court's ruling and sent the case back for further consideration, meaning Ames will get a chance to prove her discrimination claims against the Ohio Department of Youth Services, which runs the state's juvenile detention centers. A spokesperson for the Ohio attorney general's office, which defended the case, said the Supreme Court 'made clear that this case is not over,' and it still believes Ames was treated fairly. 'We look forward to fully pressing those arguments as the case moves forward because the Ohio Department of Youth Services did not engage in unlawful discrimination,' spokesperson Dominic Binkley said in a statement. The state argued previously that Ames was not chosen for the job she applied for and then demoted because she lacked experience relevant to both positions. In addition to uniting the Supreme Court, the case is also notable for being one in which both the Biden and Trump administrations, as well as conservative groups like America First Legal, all lined up behind the worker and against the 'background circumstances' standard. Some civil rights groups were concerned, however, that doing so could lead to an uptick of meritless 'reverse discrimination' cases.
Yahoo
24 minutes ago
- Yahoo
Wes Moore: ‘I don't need studies. Just do the work.'
COLUMBIA, S.C. — Wes Moore is not running for president. The governor of Maryland will say that anywhere: In a TV studio, at a press conference in Annapolis, at a Democratic Party gathering in an early presidential primary state. After a roaring response from the crowd at the Democrats' Blue Palmetto dinner and Rep. Jim Clyburn's (R-S.C.) 'world famous fish fry,' Moore skipped the party's all-day convention, which might have fueled even more 2028 speculation; he met instead with an early 2008 supporter of Barack Obama at his home in the suburbs. Moore did take time, during the trip, to talk to Semafor. His speech had urged Democrats to take a page from Donald Trump and act boldly and quickly, not get bogged down in studies or meetings. We followed up on that, as well as local criticism of how he'd vetoed a study of reparations for the descendants of slaves, and how the deportations and asylum cancellations affected Maryland and every other state. And Moore described an active, faith-based liberalism that could respond effectively to the Trump administration, now and when it's over. This is an edited transcript of the conversation. David Weigel: When you talked about the speed Trump moves at, I was curious — how much of what he's dismantled should Democrats be rebuilding? Wes Moore: I don't think that's what Democrats should do. That's basically making the argument that everything was perfect before, and he's just dismantling something that was perfect. I'm not defending that, because I think you're trying to defend the indefensible. There were real problems before. I think about my own life and journey — my journey has been the consequences of, in many cases, some really bad policies that have been put in place, and not just by Republicans. So I don't think that the answer is: Let's just go and rebuild what was there before. Truthfully, there were people being left behind before. Saying we have to move with a sense of speed and urgency does not mean we have to put things back the way they were, as fast as possible. On immigration; The Supreme Court just let Trump remove temporary status from 500,000-odd people. Some got asylum status while they were here, but most of these people, from Venezuela and Haiti, lost their TPS. Why was that wrong? What we're seeing is an exploitation of an already broken process. Immigration has been broken for a very long time, and again, Donald Trump didn't break it. Donald Trump is actually exposing breakage. We know that Congress, actually, is the one with the authority to really reform and rethink and make sure that we have an immigration process that matches the aspirations of our country and comes up with a sane and systematic way for allowing immigrants to come into the country. Congress has decided that they're not going to do this. The President has decided that he is not going to work with Congress to do this… so, in the last five months, we've taken a broken immigration process and we've just thrown kerosene on it. Were the people who fled those countries enriching our country by being here? Haitians in Springfield, Venezuelans around Florida — was the country better because they were here, and weaker because they're not? We have to fix the immigration side. It's — we have a system that is now allowing for exploitation. We have a system that is now allowing for choices about what rules to follow and what rules not to follow, what court decisions to enforce and which not to enforce. We have an absolute mess on our hands… [it] highlights the problem in the first place. Because what the President is doing, in many cases, the President doesn't have the authority to do. The President is taking advantage of the fact that we have a broken system. Tim Walz spoke here; he's compared ICE, recently, to the Gestapo. You agree with that assessment? I think we have an immigration system in this country that allows way too much room for interpretation. It allows way too much space for people to try to fill into the void — and in some cases, illegally. That's the reason that the guidance that I've given to all of our state agencies is, in the state of Maryland, we've got to follow the Constitution. The constitution is very clear about where jurisdictional authority on immigration enforcement begins and ends. One legislator here, John King, told Politico that he would skip the dinner because he was frustrated with your veto of the reparations study in Maryland. Was the issue with that, hey, we don't need another study? Or was it, reparations are not worth pursuing? This would be the fifth study in 25 years. What are we studying? We have got to stop being the party of bureaucracy and multi-year studies on things that we know the answers to, and be the party of action. There is nobody in the state of Maryland or elsewhere who can legitimately question my commitment to these issues, right? Just in the past two and a half years, we've had over $1.3 billion of investments in our state's HBCUs. That's a 60% increase. We've been able to have the largest mass pardon in the history of the United States of America for misdemeanor cannabis convictions. We're giving assistance when it comes to first time home-buying. We've been able to address procurement policies and invest over $800 million in black-owned businesses. There is nobody who can argue that we are not doing the work of repair right now. My point is, the bill says we are going to spend two years studying this and then bring the recommendations to the governor. Well, I am the governor, and I don't need two years. Let's work now. I have the largest amount of vetoes from a Democratic governor of Maryland in a generation. There was something about a data center study — vetoed it. We did something around an energy study — vetoed it. I don't need studies. Just do the work. Do you find, talking to people in Maryland, some who look at Trump and say: Hey, he's doing something? At least he's acting? That's where this goes, back to this idea that Donald Trump doesn't need a multi-year study to dismantle the Constitution. Donald Trump doesn't need a multi-year study to be able to say that he is going to put together a tax package that is literally giving billionaires a tax cut and leaving the rest of us with the bill. He didn't need a white paper to explain that to him. So I think people, we have to look at his actions as, in many cases, inhumane and unconstitutional, and we have to be able to call it out, but we would be foolish not to understand there is something about speed that Donald Trump gets that we need to start getting as a party too. Maryland's a state. When Republicans pass the laws people are fleeing, it's sometimes couched in religious terms. How does your faith inform your tolerance toward transgender rights? My faith informs how I think about humanity. I mean, I'm a deeply faithful person. I believe that if we're all God's children, then by definition, we're brothers and sisters. And I think it's important that we act accordingly. My faith really does shape how I think about the love of humanity, a love for the least of these, our ability to fight for those who need and deserve a champion. It's part of our responsibility to emulate and try to be vessels of God on earth. There's nothing Christian about bullying.
