Law Commons^™

Misinterpreting "Sounds Of Silence": Why Courts Should Not "Imply" Congressional Preclusion Of § 1983 Constitutional Claims, Rosalie Berger Levinson

Law Faculty Publications

Despite the clear text of 42 U.S.C. § 1983, its promise to protect constitutional rights has been obfuscated by the theory that Congress, by enacting civil rights laws, has “impliedly” foreclosed the historic use of § 1983 to vindicate constitutional wrongdoing. Increasingly, plaintiffs are being denied their right to vindicate constitutional wrongdoing, either because the new “preempting” federal statute does not trigger individual liability or because it makes institutional liability more difficult to establish.

It is counterintuitive to believe that Congress, in an attempt to expand equality or due process, intended to cut off existing remedies for constitutional violations. Nonetheless, …