Jump to ContentJump to Main Navigation
The Embattled Constitution$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM NYU Press SCHOLARSHIP ONLINE (www.nyu.universitypressscholarship.com). (c) Copyright University of NYU Press Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in NYSO for personal use.date: 29 May 2020

Securing Fragile Foundations

Securing Fragile Foundations

Affirmative Constitutional Adjudication in Federal Courts

(p.207) 8 Securing Fragile Foundations
The Embattled Constitution

Marsha S. Berzon

NYU Press

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

NYU Press Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs, and if you can't find the answer there, please contact us.