"In the last two decades it has become increasingly common for litigants to characterize as constitutional rights that would previously have been viewed as properly heard under state tort law if they were to be protected at all." Most recently lower federal courts have been more willing to recognize such constitutional causes of action than the United States Supreme Court, but not long ago the Supreme Court did encourage such claims. In the early 1960s it turned an 1871 civil rights statute into an effective vehicle for litigation of constitutional actions brought against state and local officials . While the actions of the Chicago police in that case did represent an egregious violation of the federal Constitution, they were also the basis for a cause of action under Illinois tort law. In a similar case in 1971, the Supreme Court read the Constitution itself as implying a private right of action for damages against federal officials. Congress has also supported the rights of plaintiffs to bring constitutional claims.
Christina B. Whitman,
Elevation of Private Rights to the Constitutional Level,
Law Quadrangle (formerly Law Quad Notes)
Available at: https://repository.law.umich.edu/lqnotes/vol26/iss2/11