Bivensing the 13th Amendment

From Logsdon-Smith v. Kentucky. Plaintiffs were sexually abused by a probation/parole officer. They sued the governor and the state for a 13th Amendment violation under § 1983; in response to a motion to dismiss arguing the § 1983 claim was time-barred, they refiled as a direct action under the 13th Amendment. The Sixth Circuit affirmed dismissal.

The 13th Amendment is not directly enforceable because § 1983 exists as the exclusive mechanism for enforcing that provision against state actors; Congress has enacted laws (including § 1983) to enforce the 13th Amendment; and the 13th Amendment provides for congressional enforcement and precludes an implied right of action, unlike those rights enforceable under Bivens . This makes sense, especially because the plaintiffs downshifted away from § 1983 because they blew the statute of limitations--it makes no sense to have § 1983 as the cause of action unless you have deprived yourself of the opportunity to file a § 1983 action, in which case you can rely on the Constitution. Plus, it seems like a futile move from the outset--Bivens actions are subject to the personal-injury period for the state in which the action is brought (one year in Kentucky), as are § 1983 actions. If a 13th-Amendment-Bivens claim were possible, it would be as time-barred as the § 1983 action.

The alternative basis for dismissal makes less sense--that the state has 11th Amendment immunity because there is no clear congressional statement abrogating immunity. But that begs the question. The unequivocal congressional statement appears in the statutory cause of action. Congress should have the same power to abrogate under § 2 of the 13th Amendment as under § 5 of the 14th--both were enacted subsequent to Article III and the 11th Amendment and both limited state power and enhanced federal power.But congressional power or congressional statement is irrelevant in this case, because the absence of a congressionally created cause of action precludes any congressional statement. The question should be whether the amendment itself abrogates, which has nothing to do with a clear congressional statement. The answer cannot depend on the text; no constitutional provision--including those through which Congress can abrogate--expressly abrogates sovereign immunity because sovereign immunity appears nowhere in the Constitution. The absence of abrogation here derives from the absence of a congressional cause of action, which was the first reason for rejecting the plaintiffs' claims; it is not an independent basis for dismissal.

The court pointed out the "broader policy questions" about whether a one-year limitations period is too short for constitutional claims under § 1983. Courts apply the state limitations period so far as it is "not inconsistent with the Constitution and laws of the United States." A six-month period is too short and inconsistent with the purposes of § 1983 and the Constitution. Perhaps one year is too short, as well.