The traditional structure of an action in constitutional tort was tripartite.1 Plaintiffs would sue government officers under conventional tort causes of action,2 those officers would raise public-justification defenses,3 and then plaintiffs would introduce the alleged constitutional violation as a limitation on that defense.4 Of course, the entire process short-circuits if the government and its officers are immune from tort liability, as they frequently are today.5 Recently, in Burnett v. Smith,6 the Iowa Supreme Court declined to recognize an independent cause of action for money damages under its constitution and overruled an earlier case that had done so.7 The court observed that the Iowa judiciary of the mid-nineteenth century did not recognize direct constitutional claims for damages and argued that modern Iowa courts should follow suit.8 This reasoning overlooks the flexibility of Iowa’s early common law. Early cases immediately following the adoption of the Iowa Constitution recognized common law torts with no purpose other than the enforcement of a constitutional right9 and fashioned novel torts to ensure plaintiffs had access to vehicles for constitutional claims.10 And the framers and early interpreters of the Iowa Constitution presupposed tort remedies for violations of constitutional rights. Thus, the system of constitutional tort in 1857 Iowa should have made the Burnett court more willing to craft remedies, not less.
On November 1, 2019, Officer Philip Smith of the Iowa Department of Transportation spotted a garbage truck with a cracked windshield and stopped it.11 Approaching the truck’s driver, Cory Burnett, Officer Smith indicated that he would be inspecting the vehicle.12 Burnett consented and offered Officer Smith access to his garbage truck.13 But when Officer Smith asked Burnett to turn the truck’s lights on, Burnett refused.14 His position, reiterated frequently as the stop grew contentious, was simple: the officer could examine the garbage truck however he liked, but without Burnett’s help.15 After Burnett refused a series of requests for assistance, Officer Smith arrested him for “interference.”16
The State charged Burnett under section 719.1 of the Iowa Code, “interference with official acts.”17 The problem for the State was that Burnett never actually “interfere[d]” with, “resist[ed],” or “obstruct[ed]” Officer Smith’s inspection.18 The statute does not criminalize mere intransigence and, likely observing as much, a magistrate judge promptly dismissed the charges.19
His roadside indignation at least partially vindicated, Burnett pressed on with claims of his own. On November 19, 2020, he filed suit against Officer Smith and the State of Iowa in the District Court of Iowa for Johnson County.20 Burnett’s petition alleged violations of the inalienable rights, search and seizure, and due process clauses of the Iowa Constitution.21 In support of these claims, Burnett cited the Iowa Supreme Court’s 2017 decision in Godfrey v. State,22 which recognized an implied cause of action for violations of the state constitution.23
The district court granted summary judgment to Officer Smith and the State, dismissing Burnett’s claims.24 Beginning with Burnett’s inalienable rights claim, the court held that the inalienable rights clause grants only a negative power against state infringement on common law rights, not a “positive right to civil damages.”25 Relying on Baldwin v. City of Estherville26 (Baldwin I), the district court then held that Officer Smith had acted with “all due care” and therefore could not be held liable under the search and seizure clause of the Iowa Constitution.27 Last, quoting the Iowa Supreme Court’s decision in King v. State,28 the district court held that the due process clause of the state constitution bars only actions that “shock the conscience.”29 Finding Officer Smith’s conduct insufficiently shocking, the district court dismissed Burnett’s final constitutional claim.30 Burnett timely appealed.31
The Iowa Supreme Court affirmed.32 Writing for a unanimous court, Justice Mansfield held that the Iowa Constitution does not create implied causes of action for money damages, and hence that Godfrey should be overruled.33 After summarizing the three opinions in Godfrey,34 the court provided three core reasons for reconsidering the case. First, the court questioned the consistency of the answers it had provided to the novel and nettlesome questions that had emerged in the six years since Godfrey.35 For example, the court observed that its decision in Baldwin v. City of Estherville36 (Baldwin II) denied plaintiffs punitive damages on Godfrey claims against municipal officers because such damages are unavailable under the Iowa Municipal Tort Claims Act37 (IMTCA).38 But eighteen months later, in Wagner v. State,39 the court refused to conclusively bar punitive damages on Godfrey claims against state employees even though punitive damages are also forbidden under the Iowa Tort Claims Act40 (ITCA).41 Second, the court noted the United States Supreme Court’s decision in Egbert v. Boule42 and the withering dissatisfaction with Bivens43 expressed therein.44 Finally, the court interpreted the Iowa legislature’s explicit refusal to waive sovereign immunity in its 2021 amendments45 to the IMTCA and ITCA as symbolic disapproval of Godfrey.46
Having discussed its reasons for reappraising Godfrey, the court then explained why it viewed the case as wrongly decided. Its argument centered on Godfrey’s inconsistency with the text and history of the Iowa Constitution and the traditional structure of constitutional torts in Iowa.47 The second sentence of article XII, section 1 of the Iowa Constitution reads: “The general assembly shall pass all laws necessary to carry this Constitution into effect.”48 The court’s first argument was that by implying causes of action under the Iowa Constitution, Godfrey had deprived this sentence of meaning.49 Second, the court argued that Godfrey’s analysis of historical Iowa case law erroneously characterized traditional common law claims against law enforcement as constitutional torts.50 For example, in the court’s view, Godfrey’s references to McClurg v. Brenton51 overemphasized the case’s lofty constitutional language while ignoring that McClurg was just a common law action for “wrongful and unauthorized trespass.”52 Finally, citing early case law and the debates at Iowa’s constitutional convention, the court argued that the state’s sovereign immunity from suit was “an established rule” at the time of the current Iowa Constitution’s enactment.53
The court concluded by addressing the practical reasons for overruling Godfrey. It argued that plaintiffs suing under Godfrey frequently failed to allege an actual constitutional violation.54 In federal court, when plaintiffs did raise a real state constitutional violation, their state claim was generally duplicative of a separate claim under the Federal Constitution.55 Finally, finding reliance interests minimal given Godfrey’s youth, the court overruled the case.56
Chief Justice Christensen wrote a brief concurrence.57 After affirming her belief in stare decisis, the Chief Justice indicated she had nonetheless voted to overrule Godfrey because of the inconsistency and disorder that the decision had imposed on Iowa law.58
The Burnett court was right that nineteenth-century plaintiffs never sued directly under the Iowa Constitution but wrong about which way that fact cuts. In the decades following ratification,59 the Iowa judiciary facilitated constitutional torts by recognizing a wide array of flexible common law causes of action.60 Because the common law generally provided a vehicle,61 plaintiffs rarely needed to sue directly under the constitution. Furthermore, the shape of the common law reflected original intent; the framers of the Iowa Constitution saw damages as the natural remedy for constitutional violations. If the nineteenth-century practice was crafting judge-made causes of action to enforce the constitution, it is Burnett, not Godfrey, which deviates from tradition.
The court’s repeated claim that there is “no Iowa precedent”62 for direct suits for money damages under the Iowa Constitution proves more about the historical system of constitutional torts than the appropriateness of implying a damages remedy. Traditionally, plaintiffs vindicated both state and federal constitutional rights by suing under a common law cause of action.63 The officer would claim that his conduct was a justifiable exercise of state power, and the plaintiff would introduce the constitutional violation as a limit on that defense.64 Plaintiffs did not sue directly under the constitution because they did not need to; the common law was enough to get the constitutional claim into court.65
In Iowa, that historical model is no longer viable. The Iowa Tort Claims Act bars suits arising out of nearly all intentional torts against both the state and individual state officers acting within the scope of employment.66 And the ITCA, unlike its federal counterpart,67 does not exempt “law enforcement officers”68 from its general prohibition on intentional tort claims. In 1857, Burnett could have sued Officer Smith for assault and raised his constitutional claims as a response to Smith’s justification defense. But today, similarly situated plaintiffs have no viable cause of action. Godfrey, at bottom, was a judge-made vehicle designed to solve that problem.
Traditionally, when a constitutional claim lacked an obvious vehicle, Iowa courts were more than happy to furnish one. Many of these common law causes of action served no purpose other than the enforcement of the constitution. For example, in Edmonds v. Banbury,69 only twelve years after ratification, the Iowa Supreme Court permitted a suit against state officials seeking money damages for denial of the right to vote.70 The plaintiff in the action had failed to register for the 1869 Iowa elections and, seeing his ballot refused, sued the election judges “for the sum of ten dollars.”71 And Edmonds was not alone. Early Iowa courts permitted successful72 and unsuccessful73 common law actions for deprivation of the right to vote.
Elsewhere, Iowa courts achieved the same effect by creating causes of action in tort when defendants violated statutes enforcing constitutional rights.74 In Lane v. Mitchell,75 the plaintiff sued a set of election judges for refusing to perform the “statutory oath” required as a prerequisite to voting.76 Arguing that “[t]he constitutional right to vote is of high value to voters generally, and they should not be deprived of it,” the court recognized that the plaintiff had stated a cause of action.77
The court created additional vehicles for other constitutional provisions. In Burdick v. Babcock,78 parents sued a school superintendent for damages after their children were suspended.79 In effect, the parents were alleging that the school rules deprived their children of the state constitutional right to an education.80 Despite the absence of a conventional common law tort, the court simply described the suits as “actions at law,” considered a few prior cases, and then proceeded to the merits.81 Elsewhere, the constitutional prohibition on impairment of contracts was similarly enforced through judge-made doctrines refusing to recognize certain statutes of limitations.82 The common law of nineteenth-century Iowa was a generous vehicle for constitutional litigation, not a rigid limitation on it.
Iowa plaintiffs alleging constitutional torts invariably found a vehicle in the common law. The Burnett court’s sole purported example of an early Iowa court rejecting a constitutional tort for want of a cause of action is Lough v. City of Estherville.83 In Lough, the Iowa Supreme Court ruled against taxpayers suing a mayor and city council who had drawn the City of Estherville into an unconstitutional degree of indebtedness.84 The plaintiffs stated an unorthodox theory: they wanted the defendants to compensate taxpayers in advance by immediately paying into the city treasury enough money to cover the unconstitutional debt.85 The court called this abstract tort “unique, to say the least.”86 But in the very next sentence, it called the action “fairly presented by the record,” and “entitled to our deliberate consideration.”87 The court then simply accepted that the plaintiffs had stated a “law action” and analyzed the immunity of the defendants88: “It has always been the law that a public officer who acts either in a judicial or legislative capacity cannot be held to respond in damages on account of any act done by him in his official capacity.”89 By contrast, an executive officer enforcing an unconstitutional tax was individually liable for damages.90 In short, the problem for the Lough plaintiffs was the defendants’ immunity, not the court’s unwillingness to fashion a cause of action.
The framers of the 1857 Iowa Constitution expected it to be enforceable through tort. At the constitutional convention, a delegate proposed an amendment authorizing suits against the state for money damages if it revoked previously granted privileges or immunities.91 The proposal was designed to fill a narrow gap in the preexisting remedial scheme: under the historical system of constitutional tort, Iowa officers acting in an official capacity could not be held individually liable for the state’s breach of contract.92 The state, not its agents, was the principal in any contractual agreement.93 Because the state was immune to suit,94 plaintiffs were simply out of luck. Thus, the first notable thing about the delegate’s proposal is that it addressed the major95 hole in the traditional system. The inference is that the delegates presumed conventional tort law would provide remedies for most other constitutional violations.96
Furthermore, the convention rejected the proposal because it abrogated sovereign immunity, not because it created a constitutional remedy. The proposal proved unpopular. Delegates called it “injurious,”97 “unnecessary,”98 and (somewhat dramatically) “monstrous.”99 Though they opposed the amendment, the delegates did not oppose enforcement of the constitution through tort actions for damages.100 Instead, their primary criticisms were that the proposal was “liable to get the State into an innumerable number of law suits”101 and impliedly authorized the legislature to make and break contracts at will.102 But the fundamental idea, that the appropriate remedy for the violation of a vested103 constitutional right was a suit for damages, was uncontroversial.104 The Burnett court was, therefore, entirely right to rely on this debate as evidence of the framers’ bedrock belief in sovereign immunity.105 But the court did not observe the delegates’ other fundamental presumption: that their constitution would be enforceable through tort.
Historically, Iowa courts built a common law supple enough to enforce the vast majority of constitutional rights.106 The system performed particularly well in Iowa’s state constitutional context, where Iowa courts could simply adjust the common law to adequately protect constitutional guarantees. Indeed, enforcing the Federal Constitution through state tort law107 was altogether less reasonable than enforcing the Iowa Constitution through Iowa tort law. The strange thing about Burnett, then, is that the decision reads the traditional willingness of Iowa courts to facilitate constitutional suits through judge-made common law torts as a reason those courts should reject the same kinds of suits today.