Is a tort claim adequate to vindicate violation of a Constitutional right?
A second problem was observed by the court. If the remedies for Constitutional violations are limited to tort law remedies, it implies that Constitutional rights are merely coextensive with tort law, and no greater. This was seen by the majority, and Harlan especially, as cheapening constitutional rights unacceptably. The majority of the court was under the impression that Constitutional rights were special, and deserved special status above and beyond mere common law rights, and the Bivens action would proved such a vehicle. If one puts enough emphasis on the specialness of Constitutional rights, the Court’s conclusion that absent the new implied cause of action, Bivens was a man without a remedy, adds up. If however, one discounts this assumption, the decision was not logical. Reduced to the material differences, the availability of punitive damages is the only practical difference that makes a Constitutional violation special when compared to any other right, in retroactive litigati
