Unanimous Supreme Court Adopts the Sword-Shield Dichotomy To Explain How Constitutional Rights Can Be Litigated

Justice Thomas: “constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose”

[This post is co-authored with Professor Seth Barrett Tillman].

On April 16, 2024, the Supreme Court decided DeVillier v. Texas. The question presented was whether "a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action." However, the Court did not need to answer that question because "Texas law provides a cause of action that allows property owners to vindicate their rights under the Takings Clause." The Court unanimously ruled that DeVillier's claims could "proceed under Texas' state-law cause of action."

Justice Thomas wrote the unanimous opinion for the Court. Thomas provided a brief summary of how constitution rights can be litigated in federal court:

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. (slip op. at 5.)

Here, Justice Thomas describes the sword-shield dichotomy that we had advanced during the Fourteenth Amendment, Section 3 litigation. When a constitutional right is "asserted offensively," it must be brought pursuant to an "independent cause of action designed for that purpose," such as Section 1983. By contrast, a constitutional right can be "invoked defensively" without a cause of action in a criminal prosecution or some other state enforcement action. This simple dichotomy reconciles Griffin's Case (C.C.D. Va. 1869) (Chase, C.J.) and the Case of Jefferson Davis (C.C.D. Va. 1868) (Chase, C.J. and Underwood, D.J.). It also makes sense of much of the Court's remedies doctrine.

Justice Thomas cited Egbert v. Boule, but this case only concerned a limitation on the Bivens (1971) remedy. That case did not speak to the offense/defense or sword/shield dichotomy. Thomas only cited Section 1983 itself, which does not directly support the proposition at issue. Still, we think the Court has clarified the law here in an important fashion. As best as we can recall, DeVillier is the cleanest statement of this principle in the Court's precedents. (Accord Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978) (citing Griffin's Case).) Federal courts casebooks should take note. If only Justice Thomas had cited Griffin's Case! For those interested in reading further, we discuss the sword-shield dichotomy in Sweeping and Forcing (pp. 389–404); see also Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citing Sweeping and Forcing, supra) (adopting the sword-shield dichotomy as basis for dismissing plaintiffs' purported Section 3 action).

We are grateful that our theory of constitutional litigation has seen resonance in the courts.