Five Views of Federalism: Converse-1983 in Context

Abstract

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.