Chicago-Kent Law Review, Vol. 72, No. 3 (1997), pp. 617-660


Government officers may harm persons in many ways. When an official inflicts a physical injury, causes emotional distress, publishes defamatory statements, or initiates a malicious prosecution, the victim's traditional recourse is a tort suit brought under common law or statutory principles. But an alternative to ordinary tort may also be available. The growth of damage remedies for constitutional violations in the decades following Monroe v. Pape has encouraged litigants to frame their cases as breaches of the Constitution. These litigants may sue for damages under 42 U.S.C. § 1983 when the offender is a state employee, or assert the damages cause of action implied from the Constitution in Bivens v. Six Unknown Named Federal Narcotics Agents if the defendant is a federal officer. In either case the Court's task is to fix the boundary of constitutional tort. It must determine whether the plaintiff has a good claim for breach of a substantive constitutional right, or instead must sue under ordinary tort law.

In this Article I examine the Supreme Court's response to the constitutional theory of recovery. I suggest that the Court's efforts at separating common law torts from constitutional violations may be evaluated along two dimensions. One inquiry addresses the substantive merits of the Court's doctrine. It examines the ends the Court has sought to attain and asks how well the Court has done at achieving those aims. The other set of questions focuses on the Court's methodology and asks whether the Court has adequately explained its rulings in terms of widely accepted means of adjudicating constitutional cases, such as analysis of the text, the framers' intent, precedent, and constitutional values.