When violations of the Federal Constitution cause injury, § 1983 provides plaintiffs with a path to seek redress. But state constitutions usually lack a § 1983 analogue, leaving state courts to decide whether their state constitution contains an implied private right of action. Different courts have reached different conclusions: At last count, sixteen states had upheld an implied right of action for at least some state constitutional violations, while approximately half of the states deny that any such private right of action exists. In coming to their differing conclusions, however, virtually all of these courts agree that the availability of tort law as an alternative source of remedy is an important consideration. From there, some courts insist that common law tort claims are sufficient to vindicate state constitutional rights, and others hold they are not.
This Essay makes two interventions into this debate. First, it argues that common law tort claims capture different concerns than state constitutional claims. Common law tort targets the relationship between private actors, and state constitutional tort targets the relationship between the government and its people. State constitutional torts thus have a decidedly political character. A state constitutional claim marks the wrong as a political one impacting the state-citizen relationship, and this marking serves important public purposes: It alerts the citizenry to political deprivations and it deters governments from perpetuating them. State constitutional torts should thus be understood to occupy a distinct role in any state remedial regime.
Second, this Essay argues that a majority of state tort claims acts already provide a convenient framework for separating wrongs that belong in the realm of common law tort from political wrongs that belong in the state constitutional sphere. State tort claims acts are generally designed to create liability for the government as a private person, and to push all other claims—in which the government acts “governmentally”—out. This Essay argues that these “governmental” claims that fall outside state tort claims acts do not automatically revert to the world of sovereign immunity, as is typically assumed, but instead belong to the realm of state constitutional tort. In other words, rather than having significant overlap, state constitutional tort may begin where state tort claims acts end.
