(concurring):
The parade of horribles envisaged by the dissent prompts me to write this brief concurrence which in no respect qualifies my concurrence in Chief Judge Kaufman’s fine majority opinion.
That parade, consisting of unlimited municipal liability for the countless unconstitutional acts committed across the land by municipalities’ policymaking bodies assumes a state of lawlessness and disregard of constitutional rules that is reminiscent of the early days of Tombstone, Arizona. This assumption is unfair to the municipalities as well as to their officials. The parade demonstrates an unawareness, if not an open disregard, of insurance, a fundamental institution in American commerce designed to spread risk. It also overlooks the abolition of municipal immunity for torts which has taken place in some forty states over the last two or three decades, both by statute and by court decision.1 Why it is permissible for municipalities to be responsible for nonconstitutional torts, say an automobile death caused by a city truck operator driving negligently, but it is “staggering” if they are not immune from supposed “incalculable liability” for the deprivation of fundamental personal rights protected by the *169Fourteenth Amendment2 is a little difficult for me to follow.
The dissent’s broadbased frontal attack— premised on excerpts from sources as diverse and conflicting as Eugene Rostow and Raoul Berger3 — on what it perceives as “judicial activism” is better answered in the pages of a law review than in the context of a judicial opinion. Still it seems worthwhile to call attention to the wisdom of Mr. Justice Cardozo, no flaming activist:
The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders.4
He also counseled that “the power to declare the law carries with it the power, and within limits the duty, to make law when none exists . . . .”5 Since it is a novel question whether the Fourteenth Amendment permits a direct action against municipalities for their unconstitutional acts, “we are not fettered by an inveterate course of decisions upon it. We are at liberty . to decide it upon reason and not by precedent.” Conner v. Long, 104 U.S. 228, 243, 26 L.Ed. 723 (1881) (Matthews, J.).
With these guiding principles in mind, I turn to several technical points which illustrate that the dissent’s historical and legal analysis is somewhat askew. (1) Fisher v. City of New York, 312 F.2d 890 (2d Cir.), cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963), quoted in the lead paragraph of the dissenting opinion, was decided eight years before Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), recognized a direct right of action under the Bill of Rights for at least Fourth Amendment violations. The Second Circuit panel deciding Fisher thus did not have the benefit of the Bivens analysis, much less that of the many commentaries and decisions on Bivens -type questions. To point to Fisher is, therefore, a little disingenuous, to say the least.
(2) The dissent fails adequately to treat the limitations built into the right to damages against municipalities. One commentator has pointed out that not only must the interest to be remedied be (a) “protected by the Constitution” and (b) “produced by ‘state action’ within the meaning of the fourteenth amendment” but (c) the action must also be the “sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution.” Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 952 (1976) [hereinafter Note, Damage Remedies ]. This third criterion, which has been set out in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), Jones v. Marshall, 528 F.2d 132, 137-39 (2d Cir. 1975) (use of deadly force against escaping felon not a deprivation of a constitutional right), and Johnson v. Glick, 481 F.2d 1028, 1032-33 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (correctional officers’ conduct must shock the conscience), eliminates both de minimis cases and even some substantial cases such as, for example, those for a first false arrest. See also Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir. 1975). Another limiting factor is the jurisdictional amount of $10,000 in 28 U.S.C. § 13316 which proba*170bly precludes cases involving many deprivations of free speech, free assembly and Fourth Amendment rights. See, Note, Damage Remedies, supra at 960 n.189. And the Supreme Court’s recent opinion, Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), requiring compensable loss over and above constitutional deprivation, is a major limitation. Other limitations may arise or will occur to the reader. That they are not recognized in the dissenting opinion is unfortunate.
(3) The dissent’s reliance upon the speeches of Congressmen Bingham and Stevens in introducing the proposed Fourteenth Amendment to the House of Representatives is totally misplaced. Bingham’s original bill became the fifth section of the Amendment. But, as finally adopted, the Amendment contained five sections, the first four of which the dissent would evidently prefer to ignore. Of course the draftsmen of the Fourteenth Amendment “intended to give Congress the power to enforce its provisions,” as the dissent states. Post at 175. But since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and Home Telephone & Telegraph Co. v. City of Los Angeles, 221 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913), it is well established that the other sections of the Amendment have their own efficacy, irrespective of Congressional enactment: they act as a shield against past local acts of unconstitutionality as well as a sword against future local acts of unconstitutionality.7 A more complete reading of one source cited by the dissent, B. Schwartz, 1 Statutory History of the United States: Civil Rights, covering pages 184-333, and especially pages 272-73 and 306 (1970), will prove beyond refutation that more was intended by the Framers of the Fourteenth Amendment than merely enabling Congress to make laws carrying it into effect. See also C. Fairman, 6 History of the Supreme Court of the United States 1270-1300 (1971).
(4) So too with Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879). That case obviously has validity for the proposition that the reach of Congress’s power under Section 5 of the Fourteenth Amendment is substantial, as explicated in Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). It has, however, not had since Brown v. Board of Education, supra, or for that matter Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), any validity for the proposition that the Amendment can be enforced only if Congress acts. That is the Ex parte Virginia proposition which the dissent would advance. Ex parte Virginia, supra, may be alive and well in the dissent’s eye, but its dictum quoted by the dissent, post at 175, is dead and, hopefully, buried. Of course, this presupposes that Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), overruled in Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956) (per curiam), is also no longer good law.
(5) Professor Tribe’s treatise is referred to by the dissent. At footnote 16 the dissent quotes his reference to certain critics of the doctrine of judicial review. Professor Tribe’s analysis of the criticism should be noted as well:
Initially, the critics may be evaluated in their own terms. Their arguments rest ultimately upon a dichotomy between a democratic political process and an antidemocratic adjudicatory process. It is this dichotomy which creates the problem of legitimacy for judicial review, and it is this dichotomy which the critics seek to bridge. A realistic analysis of judicial and political institutions, however, might suggest that the dichotomy is more metaphorical than real. Certainly, the Constitution does provide for an independent judiciary, by granting article III judges a fixed salary and life tenure, and by making congressional removal, at least, quite difficult. The process of ap*171pointment, however, is entirely political, and the sometimes quite rapid turnover in the Supreme Court’s membership suggests that the federal judiciary may be more capable of adapting to changes in the political consensus than the notion of an independent judiciary would immediately suggest. Moreover, it is not ultimately true that constitutional decisions are beyond the reach of democratic politics: there is, after all, the process of constitutional amendment, a process which is again almost purely political, and which has in fact been used successfully on four occasions to override Supreme Court decisions. More fundamentally if less dramatically, the Court’s power to move beyond a current consensus is circumscribed by its institutional incapacity to lead where others are too reluctant to follow. If judicial review thus may be somewhat more democratic than its stereotype, it may also be true that the democracy of legislative and executive politics is overstated. The point does not require much development: the ways in which representative democracy in practice diverges from the ideal are well-known. The result then is an imperfectly antidemocratic judicial process and an imperfectly democratic political process; the conclusion which this result suggests is that, contra the critics, it cannot be consent which is the sole touchstone of legitimacy.
L. Tribe, American Constitutional Law 49-51 (1978) (footnotes omitted).8
(6) One further point, though others could be made; the dissent emphasizes that “(jjudges should consider the economic and social consequences of their decisions and should gauge the wisdom of their acts by the results which are likely to ensue.” Post at 182. I agree wholeheartedly. Of course, by this the dissent admits that value judgments do ultimately, and especially in hard cases,9 play a role, even in constitutional adjudication. I wonder how that admission squares with the dissent’s purported eschewing of “judicial activism,” “judicial legislation” and “judicial autocracy.” In the end, it is the dissent’s value judgment based upon “economic and social consequences” including “incalculable liability” that prompts the dissent to decide as it does. Different value judgments motivate the majority to decide a different way. I believe the dissent is entitled to its judgment without pejoratives. I regret that the dissent does not play by the same rules.
. Ordinary tort liability for negligence has traditionally been imposed on municipal corporations exercising proprietary as distinguished from governmental functions. 63 C.J.S. Municipal Corporations § 746, at 32 (1950 & Supp. 1977). At least 40 states permit such liability against their municipalities. Id. at 32 n.26 (1950 & Supp. 1977). And of these 40 states, at least 5 have abolished immunity from tort liability altogether. Id. at 32 n.13 (Supp. 1977). See Comment, Judicial Abrogation of Governmental and Sovereign Immunity: A National Trend with a Pennsylvania Perspective, 78 Dick.L.Rev. 365 (1973).
. For these rights and the many substantive and procedural limitations on them, see 1 N. Dorsen, P. Bender & B. Neuborne, Political and Civil Rights in the United States (4th ed. 1976).
. Rostow, The Democratic Character of Judicial Review, 66 Harv.L.Rev. 193 (1952), is about as far removed from R. Berger, Government by Judiciary (1977), as Ralph Waldo Emerson is from Franz Kafka.
. B. Cardozo, The Nature of the Judicial Process 92-93 (1921).
. Id. at 124.
. Even if the $10,000 jurisdictional amount were eliminated, see post at n.l, a prospect by no means certain, the dissent has ignored the other limitations on the right to damages discussed above.
. See Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 (1972).
. The minority suggests, see post at n.87, that Professor Tribe’s “consent” is consent of the governed in the constitutional sense; plainly, however, Professor Tribe is referring to consent in the executive and legislative context.
. See Dworkin, Hard Cases, 88 Harv.L.Rev. 1957 (1975). The dissent also tacitly concedes the value judgment thesis by its footnote 3 reference to Miller & Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U.Chi.L.Rev. 661 (1960).