When a person is deprived of rights guaranteed by the Constitution, it might be supposed that federal statutes or the Constitution itself would provide a right to sue – a federally created cause of action – to redress the deprivation. Today, for example, if a state official arrests someone without probable cause, the individual has a federal cause of action against the official for violation of Fourth Amendment rights. A congressional statute, 42 U.S.C. § 1983, provides such an action against state and local officers who deprive others of their federal constitutional rights. Victims of constitutional deprivations may therefore recover damages for past injuries and injunctive relief when the unconstitutional action is ongoing as well as against them.
Such federal causes of action alleging constitutional violations as a central element of the plaintiff's complaint, however, were not a feature of traditional practice. Rather, the Constitution was enforced through ordinary proceedings in which the Constitution would supply relevant law but not a cause of action. For example, when a state prosecutor brought charges against a criminal defendant, the defendant could raise, by way of defense, that the law under which he was prosecuted was unconstitutional. In addition, plaintiffs whose person or property was injured by government officials’ enforcing unconstitutional laws might bring common law actions, particularly actions in the nature of trespass, against government officers sued as individual tortfeasors for invading plaintiffs’ interests in person and property. Over time, however, the causes of action brought by plaintiffs became more constitutionally based and less grounded in the common law. This chapter will address the movement in constitutional litigation from common law–based to more constitutionally based causes of action.
Nearly all constitutional restrictions are limitations on governmental action. But because of sovereign immunity, individuals cannot sue the federal or state governments directly – absent consent of the sovereign being sued. Naming the sovereign as a defendant is sometimes said to be inconsistent with its dignity; in all events, the inability to name the government as a defendant protects the treasury from ruinous monetary liability. Because of sovereign immunity, if a government officer committed a trespass in enforcing a state law, the injured party could not bring a suit naming the state as the defendant.