The Inconsistent Originalism of Judge-Made Remedies Against Federal Officers

Professor Carlos V´azquez and I have explained in depth why the Supreme Court’s evisceration of damages remedies for constitutional violations by federal officers is analytically and historically incoherent. And I have written elsewhere about the extent to which modern constitutional remedies doctrine has turned a remarkably blind eye to foundational principles of federalism—paying little more than lip service to the robust availability of common-law damages (and habeas) remedies against federal officers in state courts from the Founding through the Civil War—and, at least for damages, well into the twentieth century. I don’t mean to rehash (or relitigate) either argument here. Rather, this Essay aims to build on that scholarship, asking a different question: To Justices who insist on a methodological commitment to originalism (in whatever form), why has the uncontested understanding of the central role of judges in fashioning constitutional remedies against federal officers at (and well after) the Founding played such an inconsistent role in their contemporary analyses?

That is to say, why is there an originalism-heavy school of thought driving the Court’s modern jurisprudence of prospective relief, but not retrospective relief?