In 1987, I published an overly long article in the Yale Law Journal entitled Of Sovereignty and Federalism. In it, I advanced a "converse-1983" model of federalism-a model that highlighted the ways in which state laws can provide remedies when federal officials violate federal constitutional rights. For example, prior to the 1971 landmark of Bivens v. Six Unknown Federal Agents, citizens whose Fourth Amendment rights had been violated by federal officers had no clear federal cause of action; but state trespass law often provided a remedy, and enabled citizens to recover when their "persons, houses, papers, [or] effects" had been unreasonably searched or seized by federal officials. The point, I suggested, was generalizable. State remedies could often protect citizens against unconstitutional behavior by federal officers, just as federal remedies-such as Section 1983-could often protect citizens against unconstitutional behavior by state officials. Rightly understood, "federalism" should protect citizens and limit government abuse-in contrast to the Supreme Court's regular invocation of "Our Federalism" to deny citizens full remedies for constitutional wrongs. Concretely, I argued in 1987 that states should adopt "converse-1983" statutes that might invoke and invert the language of section 1983 as follows:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of [the United States], subjects or causes to be subjected, any citizen of [this state] or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the [United States] Constitution, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress."
The first draft of this overly long 1987 article was even longer still. Early on, I sketched out four competing models of federalism as foils for my own "converse-1983" model. Eventually, I decided to omit this entire section for space reasons. I put the out-take in a drawer.
And there it sat, collecting dust, until Barry Friedman phoned to invite me to participate in this symposium on "Federalism's Future." I fished the out-take from my drawer, dusted it off, and reread it. What I read seemed precisely relevant to federalism's future- especially because of certain post-1987 developments in the Supreme Court that lead me to hope that the Court is moving in directions congenial to "converse-1983."
In Part I of what follows, I shall present-with only minor emendations-my original out-take from Of Sovereignty and Federalism, contrasting the "converse-1983" model with competing conceptions of federalism. In Part II, I shall describe the post-1987 developments in Supreme Court case law that lead me to hope that "converse-1983" can indeed play an important role in federalism's future.
Akhil R. Amar,
Five Views of Federalism: "Converse-1983" in Context,
45 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol45/iss5/1