The Common Law Origins of Constitutionally Compelled Remedies

Ann Woolhandler

Traditional federal courts scholarship assumes that it was only with the post-Reconstruction advent of general federal question jurisdiction that the federal courts took on their role as primary guarantors of constitutional rights. Professor Woolhandler shows that, both before and after the advent of the 1875 general federal question statute, the federal courts aggressively employed diversity jurisdiction as a substitute form of federal question jurisdiction. Under the diversity rubric, federal courts developed independent federal rights and remedies for constitutional violations against state and local officials in actions both at law and in equity. These developments suggest that the modern nondiversity constitutional action did not, as is often assumed, derive from a state law cause of action to which federal ingredients were added ?interstitially.? Rather, it developed from the federal courts' longstanding practice of supplying remedial rights in diversity without regard to state law limitations. This use of diversity jurisdiction also suggests that the federal courts' role in providing constitutional remedies should be seen as a more continuous, less crisis-driven development than traditional federal courts scholarship has supposed. In this Article, Professor Woolhandler also explores parallel remedial developments regarding the enforcement of federal constitutional rights in state courts. She concludes that the Supreme Court, on direct review, was willing to force upon the state courts trespass remedies against state officials as an additional avenue for remedying unconstitutional action. Such remedy forcing, together with the federal courts' continued provision of similar remedies under their own jurisdictional grants, suggests that there was a common law baseline of remedies against official law abrogation. This historical account argues for the continued existence of some form of constitutionally required remedies against state and local officials, even for some actions that may violate only state law. At the same time, this same history offers little support for insisting that states maintain actions against themselves in state courts or that federal courts be available to redress random governmental invasions of liberty or property that fail to implicate constitutional concerns beyond the trespass itself.

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