The Illusory Moral Appeal of Living Constitutionalism

Two prominent theories of constitutional interpretation are originalism and living constitutionalism. One common argument for living constitutionalism over originalism is that living constitutionalism better avoids morally unjustifiable results. This Note will demonstrate that this argument is flawed because living constitutionalism lacks a definitive enough prescriptive claim as to how to interpret the United States Constitution.

Proponents of originalism assert that courts should interpret constitutional provisions in accordance with the public meaning of those provisions at the time of their enactment. One criticism of originalism is that if the Supreme Court were to faithfully apply the theory, such application leads morally unjustifiable outcomes. This criticism has two components: (1) had the Supreme Court subscribed to originalism as its interpretive method in the past, then certain outcomes, such as the banning of racial segregation in public schools in Brown v. Board of Education, would not have occurred; and (2) if the Supreme Court employs originalism in the future, the Court might issue rulings contrary to contemporary moral sensibilities. Moreover, some critics of originalism maintain that when confronted with this problem, proponents of originalism deny that its application would lead to those outcomes and stretch the theory’s meaning beyond its capacity for any meaningful constraint on interpretation, or, alternatively, they admit that they would find the morally objectionable practice unconstitutional, even if such holding would be inconsistent with the originalist method. Thus, the claim is that originalists are “faint-hearted;” that is, they either tailor the definition of originalism to conform to morally required decisions or abandon originalism when it is too much to bear. This, critics of originalism assert, indicates that originalism is not viable as a constitutional method and should be abandoned, some argue, in favor of living constitutionalism.

This Note will demonstrate the flaws in the above argument. The argument is flawed, not because it can necessarily be proven that originalism leads to more morally justifiable results than living constitutionalism, but because living constitutionalism lacks a definitive prescriptive claim to make such a comparison between the two theories possible. That is, it is impossible to identify past or hypothetical future outcomes of cases as being consistent or inconsistent with living constitutionalism. Moreover, because it is possible to do so with originalism, and thus, posit how implementing originalism could lead to morally undesirable results, living constitutionalism has an illusory moral superiority over originalism.


Respect for Marriage in U.S. Territories

The 2010s were a watershed decade for marriage equality in the United States. In 2013, the Supreme Court in United States v. Windsor struck down section 3 of the so-called Defense of Marriage Act (“DOMA”), which denied federal recognition to valid state marriages between same-sex couples. The opinion left intact section 2 of DOMA, which “allow[ed] States to refuse to recognize same-sex marriages performed under the laws of other States.” Two years after Windsor, the Supreme Court in Obergefell v. Hodges invalidated all state laws against same-sex marriage. The opinion effectively invalidated section 2 of DOMA and went one step further: states had to not merely recognize out-of-state same-sex marriages but also had to perform same-sex marriages in state as well. Obergefell brought marriage equality to every state.

Although Obergefell seemed to guarantee same-sex couples the constitutional right to marry, marriage equality became vulnerable in the summer of 2022. In addition to providing the critical fifth vote to reverse Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, Justice Thomas wrote a concurrence calling for the complete repudiation of substantive due process. Ominously, he wrote “in future cases, we should reconsider all of this Court’s substantive due process precedents, including . . . Obergefell.”

Justice Thomas’s concurrence in Dobbs reinvigorated congressional efforts to pass the Respect for Marriage Act (“RFMA”), a statute that would require states to grant full faith and credit to out-of-state marriages regardless of race, gender, ethnicity, or national origin. The marriage equality movement succeeded when President Biden signed the RFMA into law in December 2022. Despite the recent controversy of Thomas’s Dobbs concurrence, the RFMA was not new legislation; versions of the RFMA had been proposed in Congress for over a decade, before either the Windsor or Obergefell opinions were issued. The RFMA did not simply codify Obergefell, as the Act does not invalidate any state’s prohibition on licensing same-sex marriage within its own borders. Instead, the RFMA effectively repealed section 2 of DOMA and affirmatively requires states to recognize same-sex marriages legally performed in other states.

Opponents of the RFMA argued that the legislation was unnecessary because Obergefell already protects marriage equality. They seem unimpressed with Justice Thomas’s shot across the bow in Dobbs. For example, one month after Justice Thomas announced his intention to reconsider and perhaps reverse Obergefell, Senator Marco Rubio belittled the RFMA as a “stupid waste of time.” Iowa Senator Chuck Grassley voted against the RFMA, asserting that the “legislation is simply unnecessary. No one seriously thinks Obergefell is going to be overturned so we don’t need legislation.” He implied that RFMA supporters were seeking “to fabricate unnecessary discontent in our nation.”

The argument that the RFMA was unnecessary because marriage equality was already the law of the land failed to appreciate how constitutional law reaches the shores of U.S. territories. Even if Justice Thomas fails in his mission to overturn Obergefell, the RFMA is still essential now to bring the protections of Obergefell to all corners of the American empire. Before the RFMA, the U.S. territory of American Samoa refused to follow Obergefell and continued to restrict marriage licenses to opposite-sex couples.

While Obergefell instantly brought marriage equality to every state, the path toward marriage rights has been more complicated in U.S. territories: American Samoa, Guam, the Commonwealth of the Northern Mariana Islands (“CNMI”), the U.S. Virgin Islands (“USVI”), and Puerto Rico.

Acquired primarily from colonial powers by purchase or as the spoils of war, U.S. territories hold a precarious position in our constitutional structure. Beginning in 1901, the Supreme Court issued a series of opinions known as the Insular Cases. This line of authority prevented constitutional rights from automatically protecting territorial residents. Instead, the Court held that “the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.” In the absence of congressional directive, the Insular rubric provides that federal courts can hold that a constitutional right applies to one or more territories when the court determines that the right is “fundamental” and that recognizing the right would not be “impracticable and anomalous” for that territory. Under this test, for example, the district court in King v. Andrusstruck down rules denying jury trials in criminal cases in American Samoa, finding that it would not be impractical and anomalous to require American Samoa to provide jury trials to criminal defendants, given the structure of the American Samoan judicial system.

Conversely, in rejecting calls to provide birthright citizenship to individuals born in American Samoa, The Court of Appeals for the D.C. Circuit in 2015 in Tuaua v. United States held that it would be “anomalous to impose citizenship over the objections of the American Samoan people themselves” and federal judges should not “forcibly impose a compact of citizenship—with its concomitant rights, obligations, and implications for cultural identity.” In 2021, the Tenth Circuit in Fitisemanu v. United States followed suit and used the Insular framework to block birthright citizenship for American Samoans.

The Fitisemanu plaintiffs petitioned the Supreme Court for certiorari. Some commentators saw the case as the perfect vehicle for challenging the Insular Cases. The hope was not far-fetched. Respected scholars advocate the reversal of the Insular Cases. Significantly, in his concurrence in United States v. Vaello Madero in April 2022, Justice Gorsuch observed the following:

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.

On October 17, 2022, however, the Supreme Court denied certiorari in Fitisemanu, thus leaving the Insular Cases intact. While not obvious at first glance, that decision has implications for marriage equality in U.S. territories.

This Article proceeds in three parts. Part I examines how the governments of the five U.S. territories responded to the Obergefell decision. Because of the Insular Cases, Obergefell did not necessarily automatically apply to the territories. Of the most concern, the territorial government of American Samoa has refused to recognize either Obergefell or marriage equality. Part II explains how the RFMA provides a partial solution to the problem created by the Insular Cases. It discusses the unappreciated significance of the RFMA for residents of U.S. territories. The RFMA brings a form of marriage equality to American Samoa for the first time. Less historic, but also important, the RFMA would ensure the continuation of marriage equality in those U.S. territories where the right to same-sex marriage is currently recognized but uniquely vulnerable because of the Insular Cases. Part III exposes some of the limitations of the RFMA. For example, the RFMA requires that states and territories provide full faith and credit to marriages legally performed in other states and territories; same-sex couples still cannot get legally married in American Samoa. They must leave home to get married, a burden not imposed on opposite-sex couples.


Prosecutorial Authority and Abortion

In the wake of Dobbs, abortion is now unlawful in many states. States that prohibit abortion use their regulatory authority, civil justice systems, and criminal law to do so. Presumably, many of the activists and politicians who have been fighting to ban abortion will want to see that outlawing abortion is effective at reducing the incidence of abortion in fact. Once abortion is unlawful in a state, some pro-life partisans will also want those who perform or assist abortions to be criminally punished.

This Essay identifies a serious procedural obstacle to the use of the criminal law against abortion in a post-Dobbs world: exclusive local authority to bring criminal prosecutions. The obstacle is constitutional in a small number of states, but one of those states, Texas, is the most populous state where abortion is now illegal. In these states, only local, autonomous prosecutors (district attorneys and county attorneys) can pursue indictments or file informations to commence criminal cases. Prosecutorial localism is enshrined in the Texas Constitution.

Inside the borders of states that do not allow their attorneys general to initiate prosecutions, criminal law against abortion will be a dead letter in certain urban and suburban counties as pro-choice electorates pick prosecutors who will not bring abortion prosecutions. For politicians in states like Texas with well-entrenched Republican leadership at the statewide level, the pressure to act forcefully against abortion will be immense, but without changes to jurisdictional laws, Republican attorneys general will be unable to enforce abortion bans through criminal law. At the same time, the pressure on Democratic county and district attorneys not to enforce the abortion laws will be equally immense. The outcome may be highly contentious constitutional litigation to revisit old understandings about the allocation of authority between state and local elected officials, as well as efforts in state legislatures to amend statutes and constitutional provisions that mandate localism in criminal procedure.

This brief Essay adds to the growing literature on criminal procedure in a post-Dobbs world. Those prosecuted for performing or having abortions who have lost the Fourteenth Amendment’s shield for the procedure itself will still be protected by the Fourth, Fifth, and Sixth Amendments, as well as broader common law traditions and workaday rules of criminal trials in their states. For instance, Peter Salib and Guha Krishnamurthi have already pointed out the deterrent effect of jury nullification on abortion prosecutions.

This Essay closes by recognizing that criminal prosecutions are not the only tool that pro-life leaders at the state level have to promulgate antiabortion policy. The fact that those involved with abortion in some “blue” counties in some “red” states will be safe from criminal prosecution will not restore the pre-Dobbs status quo. Rather, the likely result in these counties is a kind of gray market condition where unlicensed providers of medication abortions will be able to operate while licensed professionals and established clinics will be kept closed by the threat of regulatory fine, license revocation, and civil liability. And of course, this assumes that pro-life politicians and voters do not quickly amend state laws—even state constitutions—to permit attorneys general to prosecute abortion.


Colorblind Constitutional Torts

Much of the recent conversation regarding law and police accountability has focused on eliminating or limiting qualified immunity as a defense for officers facing § 1983 lawsuits for using excessive force. Developed during Reconstruction as a way to protect formerly enslaved persons from new forms of racial terror, 42 U.S.C. § 1983 allows private individuals to bring suit against police officers when their use of force goes beyond what the Constitution permits. Qualified immunity provides a way for law enforcement to evade civil suits if officers can show that they did not infringe any constitutional right or they did not violate a clearly established law—concepts that are highly deferential to police. Implicit in the contemporary emphasis on reforming qualified immunity is the idea that but for this concept, § 1983 litigation could effectively fulfill its longstanding goal of holding police officers accountable through civil liability when they beat, maim, or kill without legal justification.

Qualified immunity certainly raises important issues, and reform in this area of law is needed. But deeper problems plague § 1983 claims. In this Article, we examine a key structural deficiency tied to legal doctrine that has largely escaped critique: how the Supreme Court’s 1989 decision in Graham v. Connor radically transformed § 1983 causes of action. Prior to the Graham decision, federal courts used diverse mechanisms, notably Fourteenth Amendment substantive due process, to determine “what counts” as an appropriate use of force. The Graham decision changed this area of law by holding that all claims of police excessive force must be judged against a Fourth Amendment reasonableness standard. This transformation has led to much discussion about what Graham means for understanding which police practices concerning the use of force are constitutionally permissible. However, there has been little conversation about what Graham has specifically meant for federal courts’ conception of civil enforcement mechanisms such as § 1983 that are designed to provide monetary relief when these constitutional rights are violated. 

In this Article, we engage in the first empirical assessment of Graham’s impact on federal courts’ understanding and application of this statute. We find that the Graham decision was not only constitutionally transformative in terms of how federal courts understand the legal standard for “what counts” as excessive force, but also correlates with changes in how federal courts think about the overall scope, purpose, and nature of § 1983. Our data analysis of two hundred federal court decisions shows that the Graham decision effectively divorced § 1983 from its anti-subordinative race conscious history and intent, recasting it in individualist terms. This has led to a regime of what we call colorblind constitutional torts in that the Graham decision doctrinally filtered § 1983 use of force claims down a structural path of minimal police accountability by diminishing the central roles of race and racism when federal courts review § 1983 cases. These findings and theoretical framing suggest that the contemporary emphasis on qualified immunity in police reform conversations misunderstand and significantly underestimate the doctrinal and structural depth of the police accountability problem. This Article provides a novel and useful explanation for how and why police use of force persists and offers a roadmap for change and greater police accountability.


It is not uncommon for diabetics suffering from hypoglycemia (low blood sugar) to have their symptoms of disorientation and loss of consciousness misunderstood as being under the influence of drugs and alcohol, which can lead to mistreatment by the police.[1] This is what happened to Dethorne Graham one fall afternoon in 1984. Graham and his friend were pulled over by a police officer who thought Graham was “behaving suspiciously” when he quickly entered and exited a local convenience store in search of orange juice to offset his medical condition. The officer called for backup and, within a few short minutes, Graham was handcuffed face down on the sidewalk. When his friend tried to explain to the officers that Graham was a diabetic, one officer replied, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the [motherfucker] but drunk. Lock the [son of a bitch] up.”[2] Another neighborhood friend familiar with Graham’s condition saw the incident and brought orange juice to the scene. Graham begged Officer Matos, saying, “Please give me the orange juice.” She responded: “I’m not giving you shit.”[3] Graham was roughed up by the officers and thrown in the back of a squad car. Eventually, the officers drove him home, threw him on the ground in front of his house, and sped away.

During the altercation, Graham “sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder . . . [along with developing] a loud ringing in his right ear.”[4] Graham brought a federal civil rights suit under 42 U.S.C. § 1983 against the Charlotte, North Carolina, Police Department, alleging that the police violated constitutional rights granted to him under the Fourteenth Amendment. Before this case, plaintiffs sought remedies for excessive use of force by the police through different legal mechanisms, including substantive due process, equal protection, the Fourth Amendment, and even § 1983 as a stand-alone source for making claims.[5] While the district and circuit courts ruled in favor of the officers, the United States Supreme Court made a surprising decision. The Court held that all claims regarding the constitutionality of police use of force should be analyzed under the Fourth Amendment through a standard of “objective reasonableness.”[6] Graham v. Connor (“Graham”) marks an important, though often underappreciated, moment of doctrinal transformation. It synthesized previously divergent strands of use-of-force case law and established a new constitutional standard for all cases that involve claims of police using excessive force in the context of an arrest or investigatory stop.[7] Rather than framing police use of force as a matter concerning equal protection or substantive due process, the Graham decision effectively forced all conversations concerning excessive force to federal courts’ Fourth Amendment jurisprudence.

Over the past three decades, legal scholars and practitioners have debated the impact that Graham has had on limiting issues concerning the constitutionality of police use of force to a vague and nebulous standard of “objective reasonableness” in light of the broad deference that society and the courts give to law enforcement.[8] This deference and tendency to see almost all police actions as “reasonable” explains, at least in part, how even the most egregious police behavior often goes without penalty—a concern that is at the heart of the contemporary social movement against police violence. But, despite this almost exclusive preoccupation with what Graham has meant for constitutional law, there are other meaningful doctrinal concerns that deserve exploration. Put differently, what other aspects of use-of-force inquiries have been impacted by the shift in constitutional standards brought by Graham?

There are at least two main components to § 1983 litigation concerning police use of force: the enforcement action, which is a statutory mechanism, and the constitutional standard that is being enforced (Fourth Amendment reasonableness, per Graham). The existing scholarship only examines the influence of Graham in regard to how it changed federal courts’ understanding of the constitutional standard for “what counts” as excessive force. But what has Graham meant for how federal courts understand the scope, context, and meaning of civil rights—particularly statutory enforcement mechanisms such as § 1983?

In this Article, we engage in the first empirical assessment that examines Graham’s impact on how federal courts understand the nature and purpose of § 1983. This issue concerning Graham’s impact on § 1983 litigation beyond shaping the constitutional standard for excessive force is important for several reasons. The statute emerged during Reconstruction pursuant to Congress’s Fourteenth Amendment section 5 powers to provide civil remedies such as money damages to claimants when state officials violate constitutional rights while working in their official capacities.[9] Thus, understanding Graham’s impact should not be limited to discursive and doctrinal meditations on reasonableness, which is where the bulk of the discussion on this decision lies. It is also important to explore Graham’s impact on a civil rights statute designed to enforce constitutional rights in terms of how, if at all, the decision affected the way that federal courts read and interpret the history, meaning, and application of § 1983—legislation meant to give claims concerning police excessive force purpose and effect. Clearly, § 1983 as an enforcement mechanism has a close relationship with Fourth Amendment standards on reasonableness in the police use of force context. This Article is an attempt to go beyond existing scholarship on how the Graham decision reshaped the constitutional standard to also understand how it may have impacted the way that federal courts conceptualize the reach and intent of the civil statute meant to enforce these rights.

This research is critically important in light of contemporary social movements and proposed legal reforms responding to growing public awareness of police brutality in marginalized communities. Following the killing of George Floyd in Minneapolis and subsequent global protests against anti-Black violence, the conversation on how law can compel greater accountability with regards to police use of force has focused heavily on qualified immunity. Qualified immunity is a judicially created concept that emerged in the 1960s to allow government officials facing constitutional tort actions to avoid civil suits and the possibility of paying money damages when they can show that they did not violate any constitutional right or that the law they were accused of breaking was not clearly established. Qualified immunity morphed over subsequent decades to largely become a mechanism to shield police officers from enduring § 1983 lawsuits in virtually all but the most egregious instances of force.[10] Federal courts’ deferential posture towards police facing constitutional tort actions has turned qualified immunity into an exculpatory tool for law enforcement who use excessive force. As such, the post-Floyd emphasis on eliminating qualified immunity or restricting its use has become a popular public rallying point. For example, at the federal level, Representatives Justin Amash and Ayanna Pressley introduced the Ending Qualified Immunity Act in the House of Representatives in June 2020,[11] which was followed shortly by a similar bill in the Senate proposed by Senators Edward Markey, Elizabeth Warren, and Bernie Sanders.[12] Other efforts have been pursued to address the use of qualified immunity in state-level legislation. Since George Floyd’s murder in May 2020, “at least 25 states have taken up the issue and considered some form of qualified immunity reform, including Colorado, New Mexico, Connecticut and Massachusetts, which have passed legislation to end or restrict the defense.”[13] The idea behind these and other efforts at ending qualified immunity is that making police officers open to civil lawsuits for using excessive force will increase accountability and prevent officers from engaging in violence that violates constitutional rights.

Without question, qualified immunity presents unjust and unjustifiable barriers to holding police accountable. But there are deeper structural limitations placed on this type of litigation—namely, Graham’s reframing and reorientation of the entire constitutional tort endeavor. The impact of Graham deserves as much or even greater attention to the extent that the reframing of police use of force through Fourth Amendment logics has dislodged constitutional tort litigation from its foundational purpose: protecting the Black community from state violence. Yet, conversations regarding the Graham decision, its transformative impact on policing, and its role in undermining police accountability are largely absent from legal and public discussions regarding police reform. This Article uses empirical evidence to draw attention to this problem and argues for a different focus in efforts to reduce police violence.

To understand the structural limitations on police accountability beyond qualified immunity that were ushered in by the Graham decision, Part I of this Article begins with providing a brief history of § 1983 and explores the constitutional and statutory evolutions that constitute contemporary use-of-force jurisprudence. Part I also shows that legal scholars have mostly discussed the problem of police accountability for using excessive force in terms of qualified immunity. Part II examines the research literature on Graham and how existing scholarship is largely silent on how this doctrinal evolution came to limit constitutional tort actions. The impact of Graham has been discussed in legal scholarship with very little, if any, attention to what the decision to exclusively assess the constitutionality of police use of force through Fourth Amendment frameworks has meant for federal courts’ posture towards civil remedies offered by statute (§ 1983) and sought by plaintiffs. Part III describes our empirical study examining shifts in how federal courts decided § 1983 cases after Graham. We look at two periods: (a) from Monroe v. Pape in 1961 (which marks the beginning of the modern era of § 1983 litigation) through the Graham decision in 1989 and then (b) just after Graham from 1990 to 2016. Part IV discusses the results from our study. We find that there are important changes in how federal courts understand and approach § 1983 that correlate with the Graham decision. In particular, (1) references to § 1983’s descriptive titles—Ku Klux Klan Act, Enforcement Act, etc.—that reflect the racial history tied to this civil rights statute declined substantially after Graham; (2) consistent with Graham’s holding, judicial recognition of § 1983’s tight doctrinal relationship to the Fourteenth Amendment as a more race-conscious constitutional standard for excessive force claims largely ended, diminishing the potential of § 1983 civil remedies by linking them to Fourth Amendment standards of “reasonableness” that largely defer to the police; and (3) mentions of the race of plaintiffs and officers meaningfully decreased after the Graham decision. In Part V, we draw upon these empirical findings to develop a theory of colorblind constitutional torts that can at least partially explain these results as well as the persistence of police violence despite the availability of legal mechanisms designed to prevent and remedy such abuses. We then briefly conclude with a discussion of how these empirical findings and new theoretical framework can help federal courts reimagine constitutional torts in a manner that can produce greater police accountability.

The findings from our research show how the accountability problem regarding police use of force is not simply connected to individual “bad apples” in law enforcement shielded by misguided common law arguments about qualified immunity. More to the point, there are important doctrinal barriers that emerged after the Graham decision’s imposition of a Fourth Amendment framework that infused constitutional tort actions with colorblind sensibilities that undercut the entire historical project of § 1983. The empirical evidence, doctrinal reframing, and theoretical argument provided by this Article open up important new opportunities for change.

The data provided by this study raise important questions about Graham’s significance beyond matters concerning constitutional law. Graham has also had tremendous implications on how federal courts interpret and understand federal civil right statutes, particularly § 1983. By instilling a discourse of colorblindness into excessive-force litigation, Graham disrupts, if not completely undermines the connection between § 1983 and the distinct history of state-sponsored racial terror giving rise to it. By bringing colorblindness through the backdoor into judicial interpretations of this federal statutory remedy, Graham not only fundamentally contradicts the social, political, and historical forces that give meaning to § 1983, but it also frustrates § 1983’s ability to address contemporary abuses under the color of law, such as excessive force by law enforcement.

          [1].      The American Diabetes Association offers resources on how to engage with police officers. It notes that this is a particular concern for people with this medical condition, as “[l]aw enforcement officers [can fail] to identify hypoglycemia emergencies, mistaking them for intoxication or noncompliance. This can lead to the individual being seriously injured during the arrest, or even passing away because the need for medical care was not recognized in time.” Discrimination: Law Enforcement, Am. Diabetes Ass’n, [].

          [2].      Graham v. Connor, 490 U.S. 386, 389 (1989). The quoted language was originally censored by the Court in its opinion, but it appears uncensored here.

          [3].      Direct Examination of DeThorn Graham, Graham v. Connor, No. 87-6571 (W.D.N.C. Oct. 13, 1988).

          [4].      Graham, 490 U.S. at 390.

          [5].      See generally Osagie K. Obasogie & Zachary Newman, The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor, 112 Nw. U. L. Rev. 1465 (2018) (finding empirical support for that federal courts largely did not use the Fourth Amendment as a constitutional standard in § 1983 excessive-force cases prior to Graham.).

          [6].      Graham, 490 U.S. at 388.

          [7].      Graham notes that this Fourth Amendment analysis applies when the police intentionally engage in an arrest, investigatory stop, or seizure of a citizen. Instances after Graham where the police cause physical harm without this intent (such as with innocent passersby) may still be analyzed through other constitutional mechanisms. See County of Sacramento v. Lewis, 523 U.S. 833, 854 (1997). This Article only discusses excessive force that occurs in the context of an arrest or investigatory stop.

          [8].      For a discussion of how deference to law enforcement shapes the federal courts’ understanding of the constitutional boundaries of excessive force, see Osagie K. Obasogie & Zachary Newman, The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of Excessive Force Become Constitutional Law, 104 Cornell L. Rev. 1281, 1322 (2019). For a broader assessment of the history of judicial deference to police, see Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2052 (2017).

          [9].      U.S. Const. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”). As background,

On April 20, 1871, the Forty-Second Congress enacted the third Civil Rights Act known as the Ku Klux Klan Act. The primary purpose of the Act was to enforce the provisions of the Fourteenth Amendment. Section 1 of the Act added civil remedies to the criminal sanctions contained in the Civil Rights Act of 1866 for the deprivation of rights by an officer “under color of law.” Thus, Section 1 of the Ku Klux Klan Act was the precursor of the present day 42 U.S.C. § 1983. . . . On June 22, 1874, the statute became § 1979 of Title 24 of the Revised Statutes of the United States, and upon adoption of the United States Code on June 30, 1926, the statute became § 43 of Title 8 of the United States Code. In 1952 the statute was transferred to § 1983 of Title 42 of the United States Code, where it remains today.

Richard H.W. Maloy, “Under Color of”—What Does It Mean?, 56 Mercer L. Rev. 565, 574 (2005) (citations omitted). Charles Abernathy notes that

we have long recognized that the resurrection of § 1983 converted the fourteenth amendment from a shield into a sword by providing a civil action for vindication of constitutional rights and, to the extent that damages have gradually become the authorized remedy for § 1983 violations, we have easily come to think of such actions as constitutional torts—civil damage remedies for violations of constitutionally defined rights.

Charles Abernathy, Section 1983 and Constitutional Torts, 77 Geo. L.J. 1441, 1441 (1989) (citations omitted).

        [10].      See generally Osagie K. Obasogie & Anna Zaret, Plainly Incompetent: How Qualified Immunity Became an Exculpatory Doctrine of Police Excessive Force, 170 U. Pa. L. Rev. 407 (2022).

        [11].      H.R. 7085, 116th Cong. (2020).

        [12].      S. 492, 117th Cong. (2021).

        [13].      Emma Tucker, States Tackling ‘Qualified Immunity’ for Police as Congress Squabbles over the Issue, CNN (Apr. 23, 2021), [].

* Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health). B.A. Yale University; J.D. Columbia Law School; Ph.D. University of California, Berkeley. Many thanks to Richard Banks, Laura Gómez, Sonia Katyal, and Gerald López for reviewing early drafts. Comments from participants at the Stanford Law School Race and Law Workshop and UCLA Critical Race Theory Seminar and Workshop were extremely helpful. Sara Jaramillo provided excellent research assistance. 

†Senior Attorney, Legal Aid Association of California. B.A. University of California, Santa Cruz; J.D. University of California, Hastings College of the Law.

Transgender Rights & the Eighth Amendment

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex. But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019—the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person. Other state departments of corrections will surely follow, as they must under the Eighth Amendment. These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy. But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

* Jennifer L. Levi, Professor of Law, Western New England University Law School.

† Kevin M. Barry, Professor of Law, Quinnipiac University School of Law. Thanks to Shannon Minter for thoughtful advice; to the Southern California Law Review staff for editorial assistance; and to Lexie Farkash for research assistance.

Designing Supreme Court Term Limits

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term-limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term-limits proposals would have shaped the Court if they had been in place over the last eighty years of American history. These simulations enable comparative assessments of term-limits proposals relative to each other and to the historical status quo of life tenure. Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited Justices immediately could complete the transition in just sixteen years, but proposals that wait until after the sitting Justices leave the Court to appoint term-limited Justices would take an average of fifty-two years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term-limits proposals would have reduced the amount of time with extreme imbalance by almost half.

          *     Professor of Law, University of Chicago Law School. J.D. 2013, Ph.D. 2013, A.M. 2012, Harvard University. M.A., B.A. Yale University, 2007.

          †     Treiman Professor of Law, Washington University in St. Louis. J.D. Harvard University 2008, A.B. Duke University 2004.

          ‡     Associate Professor of Law, Washington University in St. Louis. Ph.D., 2015, Cornell University. J.D. 2011, Washington University. B.S.E. 2008, Grand Valley State University.                  

††         Professor of Public Policy, Harvard Kennedy School. Ph.D. 2012, A.M. 2011, A.B. 2000, Harvard University. J.D. 2004, Stanford University. For helpful conversations and comments, we are grateful to Gabe Roth and participants at workshops at the University of Chicago Law School, Washington University School of Law, NYU Law School, and the American Law & Economics Association Annual Meeting.

The Constitutional Right to Travel Under Quarantine

The constitutional right to travel has long been an enigma for courts and academics alike. Despite being widely recognized and regularly applied, relatively little has been written about the breadth or limits of this constitutional guarantee. This gap is particularly striking in the context of restrictive measures designed to curb the spread of a dangerous disease, like quarantines. Although travel rights are directly implicated by such regulations, the law of quarantines (to the limited extent that one has been developed) has almost entirely disregarded the constitutional right to travel. This Article seeks to close this gap by building a detailed model of the Constitution’s protections of movement and travel and then applying this model to quarantines and similar regulations aimed at controlling the spread of a contagious disease. In so doing, this Article makes contributions to the fields of constitutional law and health law, while providing a robust framework of immediate use to policymakers, courts, and litigants responding to the COVID-19 pandemic.

The Expressive Fourth Amendment

After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all racesmarching, screaming, and demonstrating against police brutality and for racial justice.Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first Part of this Article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second Part of this Article reviews circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation to analyze how courts currently evaluate, in section 1983 Actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor. This Part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third Part of this Article argues that the Fourth Amendment mandates courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the Framers’ intent and Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth Part of this Article discusses the difference an expression-specific Fourth Amendment—the expressive Fourth Amendment—reasonableness test would have made in one of the circuit protest cases.