Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts
The Honorable Marsha S. Berzon
In this speech, delivered as the annual James Madison Lecture, Judge Marsha Berzon discusses the availability of judicial remedies for violations of the Constitution. Judge Berzon reflects on the federal courts’ tradition of allowing litigants to proceed directly under the Constitution—that is, without a statutorily based cause of action. This is a tradition that extends much further than the mid-twentieth century cases most commonly associated with affirmative constitutional litigation— Brown, Bolling, & Bivens, for example—and has its roots in cases from the nineteenth and early twentieth centuries. Against this long historical tradition of courts recognizing nonexpress causes of action for violations of the Constitution, Judge Berzon surveys the modern Supreme Court’s jurisprudence, a jurisprudence that sometimes requires constitutional litigants to base their claims on the same sort of clear congressional intent to permit judicial redress now required before courts will recognize so-called “implied” statutory causes of action. Judge Berzon suggests that requiring litigants seeking to enforce constitutional norms to point to evidence of congressional intent regarding the availability of judicial redress misapplies separation-of-powers concerns.