The Architecture of Accountability

From Madison’s Double Security Through Eisenhower’s Leadership to 2026 and Colorado’s Role in the Converse 1983 Movement

July 2026 By Judith Judd and Alan S. Thompson

This article examines the concept of legal accountability throughout history, focusing on Madison’s concept of dual supremacy, executive enforcement of the rule of law during the Eisenhower era, and the current efforts at the state level to provide damages remedies for breach of constitutional rights by federal agents.

The United States is a constitutional republic founded on the principle of federalism. (The root meaning of “republic” is that which belongs to the people.) Under this structure, the nation is not governed by a single authority, but by a coexistent system of federal and state governments exercising dual sovereignty. Within this framework, two key constitutional pillars often exist in tension: (1) the Supremacy Clause, which ensures federal law remains the “supreme Law of the Land,”1 and (2) the Bill of Rights, which protects individual civil liberties.

The founders were clear, however, that neither the states nor the federal government hold absolute sovereignty. Instead, ultimate sovereignty remains with the people. During the early debates about the Constitution, the founders agreed that “We the People” was a legal declaration that the people were the principals, and the government was their agent.2 Perhaps the best recognition of the importance of this founding principle is found in the final words of Abraham Lincoln’s Gettysburg Address: “[T]hat we here highly resolve . . . that government of the people, by the people, for the people, shall not perish from the earth.”3

The Founding Architecture: Madison and Double Security

In The Federalist No. 46,4 James Madison clarified that the federal and state governments are “but different agents and trustees of the people, instituted with different powers, and designated for different purposes.” In The Federalist No. 51,5 Madison stated that the division of powers between the federal government and the states provides “double security” to the people. The enumeration of liberties in the Bill of Rights was not intended to be exhaustive but rather to establish a clear boundary that no government agent—state or federal—could legally cross.6 By reserving all non-enumerated powers “to the States or to the People,” the Tenth Amendment codified the idea that the people are the ultimate reservoir of authority. The founding architecture also envisioned the states as protectors of constitutional rights against federal infringement. This is reflected in Alexander Hamilton’s statement that “[i]t may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”7

Summary of Bill of Rights Protections

US Const., amends. I–X

The Eisenhower Precedent: Enforcing the Rule of Law

In his 1958 Law Day proclamation, President Dwight D. Eisenhower declared, “The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.”8 He continued: “On this Law Day, then, we honor not only the principle of the rule of law, but also those judges, legislators, lawyers and law-abiding citizens who actively work to preserve our liberties under law.”9

A war hero fresh from the horrors of World War II and moderately conservative, President Eisenhower was called upon to usher in and defend some of the most progressive laws the country had ever passed. He was often forced to choose between his personally held conservative convictions and enforcing laws enacted by the democracy he fought so hard to preserve. His actions at critical moments of his term established his belief that democracy as practiced in the United States could only sustain if its people could count on a president and administration that would enforce the law of the land—even when doing so proved deeply unpopular or personally chisallenging. This dedication to the rule of law resulted in Eisenhower signing the Civil Rights Act of 195710 and sending federal troops to Little Rock to protect the constitutional rights of school children barred from attending their desegregated school by the State of Arkansas.

The Civil Rights Act of 1957 and the “Eisenhower Ceiling”

In the summer of 1957, President Eisenhower heeded the call of his liberal tendencies toward people, and along with advocacy groups like the National Association for the Advancement of Colored People, urged Congress to address civil rights. As a result, Congress considered, debated, and passed the Civil Rights Act of 1957,11 the first civil rights legislation considered since 1871.

The Civil Rights Act of 1957 (known as the Brownell/Eisenhower bill) was primarily designed to protect voting rights and increase Black voter registration, which was extremely low in the South at the time. Originally, the bill contained a powerful part III12 that would have given the attorney general broad enforcement powers to address the infringement of constitutional rights by anyone, not just state actors as provided in 42 USC § 1983.

Under immense pressure from Southern Democrats, President Eisenhower agreed to strip part III from the bill, and thus the final 1957 Act was narrowed exclusively to voting rights. By agreeing to this, Eisenhower set a “ceiling” on federal enforcement, establishing a precedent that the federal government would not proactively police broad constitutional violations.

Little Rock

On May 17, 1954, the US Supreme Court ruled in Brown v. Board of Education that segregated schools are “inherently unequal.”13 In September 1957, because of that ruling, nine Black students enrolled at Central High School in Little Rock, Arkansas. When Governor Faubus ordered the Arkansas National Guard to surround the school to keep the nine students from entering, President Eisenhower ordered the 101st Airborne Division into Little Rock to ensure the safety of the “Little Rock Nine.”

In February 1958, the Little Rock School District filed suit in Cooper v. Aaron,14 asking for a delay in creating and implementing the integration plan. When this case went to the Supreme Court in late August and early September, the nine justices, in an unsigned per curiam opinion, ordered the immediate start of integration at Little Rock Central High School.

Addressing efforts by Arkansas state leaders to delay or ignore desegregation, the Cooper Court said it could not “countenance a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution in Brown v. Board of Education.”15 The per curiam opinion’s summary ended with a powerful statement: “State support of segregated schools through any arrangement, management, funds or property cannot be squared with the command of the Fourteenth Amendment that no State shall deny to any person within its jurisdiction the equal protection of the laws.”16

No Right Without a Remedy: The Bivens Remedy

Eisenhower’s presidency (1953–61) is seen as having provided the legal and federal framework for the 1960s civil rights movement and its aftermath.17 During this time, the federal government focused on individual civil rights, and most enforcement actions were asserted against state actors. But it is important to note that even in the absence of legislative action in the form of part III of the 1957 Civil Rights Act, federal employees were also held personally accountable for infringement of constitutional rights. This stemmed from the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.18

In 1967, Webster Bivens brought a Fourth Amendment lawsuit against the Federal Bureau of Narcotics defendants in their individual capacities, seeking damages for unreasonable use of power during a warrantless search and seizure without probable cause. Entering Bivens’s apartment without a search warrant or a warrant for his arrest, the agents searched his apartment, handcuffed him, and threatened to arrest his entire family. They then took him to the federal courthouse, where they strip-searched him.

Bivens’s problem was that although 42 USC § 1983 allowed citizens to sue state and local officials for civil right violations, there was no equivalent federal statute allowing a person to sue federal agents for damages for constitutional violations. In his majority opinion acknowledging Bivens’s right to sue based on an implied constitutional right, Justice William Brennan explained that “[f]or people in Bivens’ shoes, it is damages or nothing.”19 His opinion looks back to Chief Justice John Marshall’s historic opinion in Marbury v. Madison, in which Marshall said:

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.

. . . .

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.20

In his famous concurrence, Justice John Marshall Harlan II noted that “arguments for a more stringent test to govern the grant of damages in constitutional cases seem to be adequately answered by the point that the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment.”21

The Eisenhower era and the 1960 civil rights movement that followed solidified the expectation that federal agents and state actors alike must operate within a framework of legal accountability. This was consistent with the fact that during the early years of this country, federal officials were held to the same standard as any other citizen. If a federal marshal broke into your home without authority, for example, the marshal could be sued in state court under state tort laws.22 “Relying on state causes of action to hold federal officers accountable put an important structural check on federal power. State courts would have a strong incentive to zealously enforce state law, guarding against federal overreach.”23

Bivens’s Relief Diminished

In the decades since the 1980s, the Court systematically dismantled Bivens, refusing to apply it in cases involving solitary confinement,24] cross-border shootings,25 and US Border Patrol misconduct. The Court’s 2022 ruling in Egbert v. Boule26 is the most recent signal that the judicial remedies established in Bivens are now all but unavailable.

Invoking a Bivens claim for relief, Boule (an inn owner on the US-Canadian border) sued Egbert (a Border Patrol agent) in federal court, claiming that Egbert violated his Fourth Amendment rights (excessive force during the entry) and his First Amendment rights (retaliation for filing a grievance). In a 6-3 decision, the Court ruled that Bivens remedies could not be extended to either the Fourth Amendment claim in the context of Border Patrol or the First Amendment retaliation claim. The Court’s opinion rejected judicially defined implied constitutional rights and effectively restricts Bivens remedies to their narrowest possible scope without formally overruling Bivens.

Writing for the majority, Justice Thomas underscored the reaction against judicial remedies by noting that “the Court now emphasizes that recognizing a Bivens cause of action for damages is a ‘disfavored judicial activity.’”27 Justice Thomas continued, “A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’”28 If so, a Bivens remedy is not available.

Limiting Bivens remedies to the specific facts of the Bivens case and the other two previous cases in which the Court implied a damages action,29 the Court held that if there is a “meaningful difference” between the Bivens facts and a case before the Court, there will be no Bivens remedy.30

Concurring in part and dissenting in part, Justice Sonia Sotomayor agreed that Bivens should not be extended to cover the First Amendment retaliation claim, which she saw as genuinely new territory, but she strongly dissented from Justice Thomas’s conclusion on the Fourth Amendment claim for excessive force, which she felt fell squarely within the original Bivens context. Reasoning that the majority’s elimination of Bivens remedies for all but those cases presenting the exact same fact pattern as Bivens effectively overruled Bivens.

Today’s decision does not overrule Bivens. It nevertheless contravenes precedent and will strip many more individuals who suffer injuries at the hands of other federal officers, and whose circumstances are materially indistinguishable from those in Bivens, of an important remedy.

. . . .

Just five years after circumscribing the standard for allowing Bivens claims to proceed, a restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases.31

Boule reflects a contemporary, strong federal bias for supremacy, preemption, and immunity, underscored in Trump v. United States, where the Court held that the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority and at least presumptive immunity for all other official acts.32

Justice Sotomayor was again unequivocal:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

. . . .

The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

. . . .

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.33

We are now experiencing a new dynamic. On one side, the Supreme Court has systematically dismantled the federal judicial remedy for unconstitutional acts by federal agents (e.g., Bivens, Ziglar, and Boule), leaving individuals with no federal damages recourse when their constitutional rights are violated by federal officers. On the other side, the Court has simultaneously expanded presidential power and immunity shielding the executive branch from accountability at both ends—federal agents on the ground have no Bivens liability, and the president directing them has absolute immunity for official acts.

The Converse 1983 Movement

As Justice Brennan noted in Bivens, without a remedy for damages, a claimant has nothing.34 Boule created a remedy gap, which the Converse 1983 movement seeks to address by holding federal agents accountable through suits brought under state law.35

The Converse 1983 theory is that § 2679(b)(2) of the Westfall Act (Federal Employees Liability Reform and Tort Compensation Act of 198836) creates a gap in federal preemption. While § 2679(b)(1) is a clear preemption of all remedies for negligent common law tort actions against federal agents, arguably preemption does not extend to the infringement of constitutional rights because paragraph (b)(2) expressly provides that “[p]aragraph (1) shall not extend or apply to a civil action against an employee of the Government—(A) which is brought for a violation of the Constitution of the United States.”37 This is exception is referred to as the Westfall exception.

Advocates of Converse 1983 legislation argue that under the Tenth Amendment, states have a primary responsibility to protect the life, liberty, and property of their citizens. Scholars like Yale Law Professor Akhil Reed Amar38 believe that Converse 1983 laws are necessary to close the “remedial gap” created by the Supreme Court’s recent narrowing of Bivens and associated federal remedies. Opponents argue that paragraph (b)(2) of the Westfall Act does not waive federal preemption for constitutional violations and assert that allowing state lawsuits against federal agents effectively allows states to dictate how federal officials perform their duties and thereby interfere with federal operations, including those exclusive to the federal government, like national security and international relations.

Generally, states have considered and passed two types of Converse 1983 Acts; (1) narrow acts that focus only on infringements of constitutional rights during immigration enforcement actions, and (2) broader acts that address constitutional violations in any context and are known as Universal Constitutional Remedies Acts (UCRAs).39

Early adopters of Converse 1983 Acts were Massachusetts (1979), California (1987), Maine (1992), and New Jersey (2004); Illinois followed in 2025. All of these states have statutes that function similarly to the UCRA model, except Illinois, whose act covers only immigration enforcement.

Operation Metro Surge, carried out by the US Department of Homeland Security’s Immigration and Customs Enforcement (ICE) in Minneapolis, Minnesota, from December 2025 through February 2026, dramatically accelerated the Converse 1983 movement. During 2026, UCRA bills were introduced in Washington, Virginia, Maryland, Hawaii, and Minnesota but did not succeed. UCRA bills were adopted in 2026 in Connecticut, New York, and Vermont. A UCRA bill is still pending in Rhode Island.

Colorado’s SB 2026-005 (Constitutional Rights Violation in Immigration Enforcement Remedy) and SB 2026-176 (State Remedies for Constitutional Rights Violation)

Colorado considered its own Converse 1983-type acts during the 2026 legislative session with SB 2026-005 (Colorado-005) and SB 2026-176 (Colorado-176). Colorado-005 was a narrow Converse 1983-type-act that provided a remedy for any individual in Colorado whose constitutional rights are infringed during an immigration enforcement action. Although it passed the Colorado legislature on May 7, 2026, Colorado-005 was vetoed by Governor Polis on June 3, 2026, based on his belief that “the legal risks of the actual language . . . outweigh the benefits.”40

Even though state actors are already liable under § 1983, they were included in Colorado-005 to avoid defeat of the legislation by reason of the “intergovernmental immunity doctrine,” which prevents states from passing laws that unfairly discriminate against the federal government. The Converse 1983 analysis is that because state actors already have all the liability imposed by § 1983, legislation like Colorado-005 does not change or expand liability already imposed on state actors.

On April 21, 2026, the Colorado Senate introduced Colorado-176 (referred to as the “No Kings Act”). Colorado-176 differed from Colorado-005 in that it was a UCRA-type act that provided protection for constitutional rights infringed in any situation, not just instances related to immigration enforcement.41 It also included fee shifting, had a two-year statute of limitations, specifically exempted judicial officers in certain situations, and allowed defendants to assert a defense of absolute or qualified immunity “to the same extent as a person sued under 42 U.S.C. Sec. 1983 under like circumstances.” It was structured to precisely mirror all aspects of § 1983, including judicially constructed concepts of limited and absolute immunity. By expressly incorporating the § 1983 judicially constructed immunities, Colorado-176 strengthened its constitutional defensibility while preserving the accountability remedy.

The Converse 1983 movement recognizes Colorado-005-type acts as more vulnerable to federal challenge than acts like Colorado-176 because they single out a uniquely federal function (immigration) and thus invite challenges that they are “obstacles” to federal objectives. Courts often view state attempts to create specific liability for federal agents involved in immigration enforcement as an unconstitutional interference with plenary federal power. Colorado-176, however, was a statute of general applicability. It provided a state court remedy for any deprivation of rights under “color of law.” Because it did not isolate a specific federal agency or policy, it would have been harder to argue that the state was attempting to “regulate” the federal government rather than simply providing a forum for constitutional redress.

Drawing much more opposition than Colorado-005, Colorado-17642 died in the Senate Judiciary Committee on May 4, 2026, when it was postponed indefinitely by a vote of 4-3.43 Opponents of Colorado-176 had two primary arguments: (1) the act was unenforceable and (2) if passed, it would trigger a flood of litigation, which would increase costs and liability across the board for public servants in Colorado. At the heart of the unenforceability argument was the belief that section (b)(2) of the Westfall Act44 is not intended to waive federal supremacy for constitutional claims, and/or will not be deemed to do so.

On the liability issue, opponents of Colorado-176 were concerned that, while federal courts provide immunity for state actors in § 1983 suits, state courts, which are not necessarily bound by federal case law, would have to develop state case law concerning the reach of Colorado-176, and because of this vacuum, the law could impose liability on any state actor, from the governor and the attorney general to teachers, public health officials, and even a librarian enforcing a book ban.

Ironically, the opposition to Colorado-176 was partly driven by the same fears that motivate the Converse 1983 movement: fear of federal challenges to progressive state laws. For example, President Trump’s Executive Order 14168 seeks to impose a national policy recognizing “two sexes, male and female.” But Colorado’s Anti-Discrimination Act45 prohibits discrimination based on sexual orientation, including transgender status. Colorado-176 opponents worried that Colorado’s district attorneys could have to defend a Colorado law that was rendered federally “unconstitutional” through US Supreme Court support of a Trump initiative. In short, the fear of an empowered unitary executive motivates both the support for Converse 1983 acts and the fear of the consequences of such acts.

It cannot be denied, however, that federal supremacy pressure is currently a concern in Colorado.46 Both supporters and opponents of Colorado-176 and Colorado-005 agree that the “remedy gap” created by Boule leaves the people of Colorado without a remedy when federal agents commit constitutional breaches. Governor Polis’s veto of Colorado-005 was not a denial of the need for state action. As he said, “If the federal government won’t hold federal officials accountable for violating constitutional rights, then state and local government must for all violations of constitutional rights.” Looking forward, he issued this call to action: “[W]e must pass a broader version of this bill that protects all constitutional rights . . . that will serve to truly hold public officials accountable.”47 Unfortunately, for now, the people have been left in a legal void—the stronger remedy killed in committee, the weaker one vetoed, and accountability nowhere to be found.

Admittedly, efforts to address the “remedy gap” face a rocky road ahead. All Converse 1983-type cases are subject to removal to federal court under 28 USC § 1442. Under this statute, the US Department of Justice need only assert a “colorable federal defense” (such as qualified immunity or that federal law preempts the state claim) to remove a case asserting liability under state law.

Upon removal to federal court, these types of cases will face the Tenth Circuit’s restrictive stance on state constitutional claims against federal agents. Silva v. United States is the cornerstone of what is referred to as the “Tenth Circuit Wall” against Bivens-type relief. In Silva, the court said that if there is any alternative process for a remedy (even an internal agency grievance process that does not award money), the court will refuse to recognize a constitutional claim.48 In Silva, a federal prison guard was accused of brutally beating a restrained, helpless prisoner at the US Penitentiary in Florence, Colorado. Senior Judge Bobby R. Baldock, writing for the Tenth Circuit, observed that the Supreme Court had “performed its own version of Bonaparte’s retreat from Moscow and progressively chipped away at the [Bivens] decision—to the point that very little of its original force remains[,]” and that expanding Bivens is now “an action that is impermissible in virtually all circumstances.”49

Conclusion: Restoring the Architecture of Double Security

The “architecture of accountability” envisioned by the founders—and tested by the executive resolve of the Eisenhower era—is in a structural crisis. As the Supreme Court continues to narrow the Bivens path toward a vanishing point, a significant remedial vacuum has emerged. In this vacuum, federal agents often operate with a level of immunity that Madison would find antithetical to the concept of “double security.” If the federal government will not provide a remedy for the constitutional overreach of its own agents, the responsibility, by constitutional design, shifts back to the states.

The Converse 1983 movement represents more than a local legislative trend; it is a sophisticated attempt to reestablish the equilibrium of federalism. By leveraging state law to hold federal actors accountable, Colorado is asserting that the Bill of Rights is not a mere “parchment barrier[]”50 but an enforceable set of constraints that follows every government agent who steps onto Colorado soil.

While the path through federal removal remains uncertain amid the restrictive precedents of the Tenth Circuit, the objective is clear. For the rule of law to survive—and as Eisenhower warned, it must for civilization to endure—there can be no rights without remedies. Whether through the specific lens of immigration enforcement or the broader scope of universal constitutional redress, the Converse 1983 movement aims to ensure that the founders’ “architecture of accountability” remains and ensures that the people remain the principals and the government, in all its forms, remains their agent.

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