Converse 1983

Converse 1983: A Constitutional Idea Whose Time Has (Finally) Come

Most criminal defense lawyers begin to feel early on that somebody should play offense, not just defense. Unfortunately, 42 U.S.C. § 1983 cuts one way.

If a state or local officer violates your federal constitutional rights, there’s a federal civil remedy. If a federal officer does the same thing? Things get… thinner. Bivens exists, but only barely, and the Supreme Court has spent the last few decades poking holes in this protection. It’s like Leon and the rest… death by a thousand cuts. Or, Swiss cheese with so many holes it’s not even cheese anymore.

Anyway, that asymmetry has always seemed strange to me. And recently I learned that nearly forty years ago Professor Akhil Reed Amar explained succinctly why this state of affairs isn’t inevitable.

In an influential law review article on federalism, Amar articulated what he called “Converse‑1983”: the idea that states may provide their own causes of action—under state law—against federal officials who violate the U.S. Constitution.

In other words, just as § 1983 allows federal courts to police state actors, state courts can and should help police federal actors. Federalism cuts both ways. Amar’s core insight is extremely simple but powerful. And it brings me back to the first year of law school.

There is nothing in the Constitution that says federal constitutional rights can only be vindicated in federal court, or only through congressionally created federal remedies. States have their own sovereign authority to create laws and remedies, and historically, state tort law often did that work long before Bivens ever existed.

If you want the original academic treatment, it’s worth reading Amar’s article, “Five Views of Federalism: ‘Converse‑1983’ in Context,” which lays out the theory and its historical grounding in detail here: Professor Akhil Reed Amar, “Five Views of Federalism: ‘Converse‑1983’ in Context” (1992)https://scholarship.law.vanderbilt.edu/vlr/vol45/iss5/1/[scholarshi...erbilt.edu]

What’s changed recently is that this idea is no longer academic. Federal officers are violating constitutional rights. Legislatures, courts, and serious commentators are starting to take Converse‑1983 seriously as the violations pile up and federal courts continue to close their doors to constitutional damages claims by proclaiming that the law isn’t just Swiss cheese… it’s thin air.

If you prefer your constitutional theory with a conversational beat (and fewer footnotes), Amar recently revisited the topic on his Amarica’s Constitution podcast in an episode aptly titled “Converse‑1983 Is A Thing.” This is an awesome podcast episode. It’s a clear, accessible discussion of why the doctrine matters now—and why it fits comfortably within both history and first principles of federalism. Amarica’s Constitution – “Converse‑1983 Is A Thing” (Feb. 11, 2026)
https://amaricasconstitution.podbean.com/e/converse-1983-is-a-thing/[amaricasco...odbean.com]

For criminal defense lawyers, this is a reminder to be creative. We’ll see what happens… but state‑law accountability may be where the next real fights happen. Converse‑1983 reminds us that the Constitution was never meant to be enforced by only one set of courts—or only one level of government.

Federalism, properly understood, is supposed to protect people. Not just governments. It’s time for all of us to be “originalists”, because “originally” we founded a government to protect against tyranny.