OPED-RIGHTS-GAP-COMMENTARY-GET

The U.S. Supreme Court building as seen on Sunday, July 11, 2021 in Washington, D.C. (Daniel Slim/AFP/Getty Images/TNS)

There is a fundamental inequity in the ability of Americans to enforce their rights under the United States Constitution.

If a person’s constitutional rights are violated by local or state government actors, the person can sue the government actors for damages to compensate for the harm suffered. However, if a person’s constitutional rights are violated by federal government actors, the person will likely not be allowed to sue the government actors for damages to compensate for the harm suffered.

Why is there a difference in the ability to seek compensation from government actors who violate their constitutional rights based on the level of government that they represent?

Within five years after the Civil War ended in 1865, three amendments to the Constitution were ratified: The 13th Amendment abolished slavery; the 14th Amendment granted citizenship to the formerly enslaved persons and also guaranteed them due process and equal protection of the laws; the 15th Amendment granted these new citizens who were male the right to vote without discrimination based on race, color or previous condition of servitude.

After these three amendments were ratified, Congress enacted a law in 1871 that authorizes a person whose constitutional rights are violated by local or state actors to sue them to recover damages for their injuries. The principal purpose of this law was to ensure that the formerly enslaved individuals could sue to enforce their constitutional rights, especially in the states where they were previously enslaved.

Congress has never enacted a law analogous to the 1871 law that authorizes a person whose constitutional rights are violated by federal actors to sue them to recover damages for their injuries. This oversight by Congress is problematic because federal actors, like their local and state counterparts, do on occasion violate the constitutional rights of Americans. Recall the many constitutional violations that were committed by agents of the Federal Bureau of Investigation when J. Edgar Hoover was its director.

The United States Supreme Court decided in 1971 that Webster Bivens, a man who sued federal law enforcement officers for falsely arresting and physically abusing him in violation of his Fourth Amendment rights, could seek damages from them even though no federal law authorized his claim. The court concluded that constitutional rights are so important that suits for damages to enforce them should be allowed even though Congress had not authorized them against federal actors.

In the next decade, the Supreme Court followed the precedent of Bivens’ case and allowed two other suits for damages to proceed against federal actors who were accused of violating Fifth Amendment and Eighth Amendment rights.

In 1983, a more conservative Supreme Court began to look askance at suits against federal actors seeking damages for their violation of constitutional rights. In 10 consecutive decisions from 1983 to 2020, the Supreme Court dismissed suits for damages against federal actors accusing them of violating constitutional rights.

The consistent theme in these 10 decisions is that suits for damages against federal actors for violating constitutional rights should be authorized by Congress and not by the courts. People seeking enforcement of their constitutional rights in these 10 cases sought compensation for their losses of the basic necessities of life (employment, food, health care and shelter) and, in one case, the loss of life itself.

Despite the gravity of these losses, the Supreme Court rejected the efforts of these individuals to enforce their constitutional rights and shut the courthouse doors to future suits.

There is an obvious solution to the problem of the gap in the enforcement of constitutional rights. Congress should enact a law like the 1871 law, allowing suits for damages against federal actors who violate constitutional rights.

Most constitutional rights exist to protect Americans from government overreach. But our constitutional rights are diminished when they are not fully enforceable against federal actors who violate them. It is time for Congress to end this inequity and enact a law that authorizes suits for damages against federal actors who violate constitutional rights.