The Supreme Court has repeatedly said that 42 U.S.C. section 1983 creates no substantive rights, but only remedies for rights created elsewhere (primarily in the Constitution). But at the same time, the Court has avoided difficult immunity problems by construing the statute to permit claims against individuals in their individual capacities - i.e., as jural entities entirely separate and distinct from the government. The Court has thus created a contradiction. For if we are to take seriously the proposition that ordinarily only the government can violate the Constitution, the reality of individual-capacity claims is at odds with characterizing section 1983 as non-substantive. The substantive right to bring an individual-capacity claim against a personal defendant involved in a constitutional violation must come from somewhere. And if it does not arise from the Constitution itself, it must arise from section 1983. This paper explains how recognizing the substance of section 1983 insofar as it authorizes individual-capacity claims can pave the way for a clarifying reform of constitutional tort doctrine. Part I starts by elaborating why section 1983 is substantive and explaining why an individual-capacity claim, while containing an imbedded constitutional issue, is not itself "constitutional." Both facts have important implications for a problem that the Supreme Court appears poised to revisit when it decides Pearson v. Callahan later this term: the wisdom and legality of the order-of-decision-making rule the Court prescribed in Saucier v. Katz. Saucier directed that, in individual-capacity actions in which the defendant interposes a qualified-immunity defense, courts should enable the continued development of constitutional law by first deciding whether the defendant’s conduct violated a constitutional right. Part I concludes with an argument that the Saucier rule should be relaxed and modified to take account of the fact that binding constitutional law should not be made in lawsuits to which the government is not a party unless the government first has been invited to intervene. Part II turns to a larger doctrinal consequence of the erroneous belief that section 1983 is non-substantive: the emergence of non-textual affirmative immunity defenses, derived from the common law, that the Supreme Court has read into the statute and made available to individual-capacity defendants. Part II argues that, once one appreciates that section 1983 is substantive, the door opens to an important question that the Court has not asked: Is there really any reason to read a conflict of laws into section 1983 by treating the substantive entitlements to sue individuals that the statute creates as coextensive with true constitutional rights but subject to being trumped by affirmative immunity defenses, drawn from the common law, that the statute does not authorize? Part II argues that the answer is no. Constitutional tort litigation would benefit enormously if the Supreme Court eliminated all affirmative immunity defenses and reinterpreted the entitlements to sue individuals that section 1983 authorizes as narrower than the true constitutional rights that limit government entities.
