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We have long recognized that the resurrection of section 1983 converted the fourteenth amendment from a shield into a sword by providing a civil action for vindication of constitutional rights and, to the extent that damages have gradually become the authorized remedy for section 1983 violations, we have easily come to think of such actions as constitutional torts-civil damage remedies for violations of constitutionally defined rights. There is, however, a subtler and greater reality to what has transpired, for the mere procedural vehicle of constitutional enforcement has, in retrospect, changed the substance of constitutional law itself. Section 1983 has not merely served as a vehicle for enforcing constitutional law, it has led to the making of a new constitutional law as the Court has adjusted constitutional norms to permit their enforcement under section 1983.

Publication Citation

77 Geo. L.J. 1441-1491 (1989)