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The Embattled Constitution$
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Norman Dorsen

Print publication date: 2013

Print ISBN-13: 9780814770122

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814770122.001.0001

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Securing Fragile Foundations

Securing Fragile Foundations

Affirmative Constitutional Adjudication in Federal Courts

Chapter:
(p.207) 8 Securing Fragile Foundations
Source:
The Embattled Constitution
Author(s):

Marsha S. Berzon

Publisher:
NYU Press
DOI:10.18574/nyu/9780814770122.003.0009

This chapter focuses on “Bivens actions,” or private suits for damages against federal officials who violate an individual's constitutional rights. Such actions are not mentioned in the U.S. Constitution, but the Supreme Court in 1971 held that they could be implied as an appropriate remedy to enforce constitutional rights. This chapter argues that the Supreme Court and lower federal courts have dramatically recast the role of the judiciary in adjudicating constitutional issues. In particular, it criticizes the Supreme Court for recently narrowing the scope of Bivens actions at the expense of civil liberties. It first traces the historical roots of affirmative constitutional adjudication in federal courts before discussing direct constitutional cases in equity and at law. It then examines the role of federal courts in constitutional adjudication in relation to constitutional text and separation of powers. Finally, it comments on the Supreme Court's continued recognition of three categories of direct constitutional claims: Supremacy Clause cases against state actors, dormant Commerce Clause cases, and suits against federal officers to enjoin allegedly unconstitutional federal laws.

Keywords:   constitutional rights, Supreme Court, federal courts, Bivens actions, affirmative constitutional adjudication, equity, separation of powers, direct constitutional claims, Supremacy Clause, Commerce Clause

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